Council of Superior Court Judges of Georgia Suite 104, 18 Capitol Square, Atlanta, Georgia 30334 (404) 656-4964 Fax (404) 651-8626
August 2020
To All Recipients of Suggested Pattern Jury Instructions:
The Council of Superior Court Judges of Georgia is pleased to present the August 2020 update to the Suggested Pattern Jury Instructions, Vol. I: Civil Cases, 5th ed. (2007). The
sections provided contain the changes; please replace the original sections in their entirety.
We encourage attorneys to submit pattern jury instructions to judges and to do so either by
reproducing specific charges contained herein or by citing pages in these volumes.
The Council welcomes suggestions for revising or adding to the pattern instructions with regard to content, language, or format to promote the goal of providing pattern instructions that are accurate, understandable, and convenient. Please submit any suggestions to the
Pattern Jury Instructions Committee of the Council at the above address.
List of Amended Charges
14.030
14.031
14.032
23.330
23.340
23.357
23.590
Condemnation; Burden of Proof (citation revised) Condemnation; Burden of Proof; Defined (charge deleted)
Condemnation; Burden of Proof; Preponderance of Evidence (charge deleted)
Exclusions from Income (charge revised) Imputed Income (charge revised)
Underemployment; Imputed-Minimum Wage Income (charge revised)
Verdict; Deviation (citation revised)
Suggested Pattern Jury Instructions
Volume I: Civil Cases State of Georgia
Fifth Edition
By the Council of Superior Court Judges of Georgia
© 2019 by the Council of Superior Court Judges of Georgia All rights reserved. First edition 1980 Printed in the United States of America
Dedication
Marcus B. Calhoun
Judge Marcus Calhoun was one of the moving forces in drafting and publishing standard, or “pattern,” jury charges for use throughout Georgia. For many years, he was chair of the Pattern Jury Instructions Committee of the Council of Superior Court Judges of Georgia. The suggested pattern jury instructions have achieved widespread acceptance in large part because of the tireless efforts of Judge Calhoun.
Judge Marcus B. Calhoun was born on June 7, 1917, in Mt. Vernon, Georgia. His father, also named Marcus B. Calhoun, was an attorney in the private practice of law in Montgomery County, Georgia, until his death in 1934. His mother, the former Annie Griffith of Athens, Georgia, taught music at Brewton Parker College.
Judge Calhoun received an associate degree from Brewton Parker College in 1936. Further education was interrupted by the death of his father and the Great Depression, so he entered the Civilian Conservation Corps (CCC), where he worked clearing swamp land in southeastern Georgia. Upon leaving the CCC, he moved to Atlanta, where he secured employment as an investigator/adjuster for an insurance company while attending Atlanta Law School at night. Upon receiving his LL.B. from the Atlanta Law School, he was admitted to the practice of law in Georgia in 1939.
Judge Calhoun first used his law degree to join the Federal Bureau of Investigation (FBI), where he served from 1940 through 1945. During that time, he was assigned as a special agent in the Baltimore, New York, and Atlanta offices of the FBI. While he worked on all
types of matters handled by the Bureau, his primary focus during the war years was directed toward uncovering Nazi espionage.
In 1946, Judge Calhoun left the FBI and moved to Thomasville, Georgia, to join Frank L. Forester in what, for twenty-one years, would remain the two-man firm of Forester & Calhoun. Judge Calhoun was the trial lawyer in what was essentially a small-town general practice. During the 1950s, he was appointed solicitor for the City Court of Thomasville, a part-time position he retained until he was appointed district attorney of the Southern Judicial Circuit in 1967.
In April 1969, Judge Calhoun was appointed to the Superior Court Bench by Gov. Lester Maddox. He served in that capacity until accepting senior judge status on April 15, 1979. He continued to serve as a senior judge until his death in April 1998. During most of his tenure as a senior judge, he also remained active on the Pattern Jury Committee.
Judge Calhoun married the former Bernice Wolfe of Wilkes County, Georgia, on June 15, 1940. Mrs. Calhoun died in 1999. They had three sons and one daughter. All three sons are graduates of the University of Georgia School of Law: Marcus Benton Calhoun, Jr., is a practicing attorney with the Columbus, Georgia, firm of Page, Scrantom, Sprouse, Tucker & Ford; William M. Calhoun is a member of the faculty of the U.S. Navy War College, Providence, Rhode Island; and Samuel W. Calhoun is a professor of law at Washington and Lee University, Lexington, Virginia. Their daughter, Bernice Calhoun Freed, died in November 2000. She was a teacher, farmer, artist, and entrepreneur residing in Guatemala at the time. There are 12 Calhoun grandchildren and 2 great-grandchildren.
In Memory of Rowland W. Barnes
On March 11, 2005, Judge Rowland W. Barnes lost his life while serving on the bench in the Superior Court of Fulton County, one of four people who were killed on that tragic day. The Judges of the Superior Court of Georgia wish to honor Judge Barnes as a respected peer, an admired jurist, and a good friend.
Judge Barnes was born in Cheyenne, Wyoming. A 1962 graduate of Lebanon Valley College in Annville, Pennsylvania, he played on the 1961 Middle Atlantic Conference championship football team. He attended law school at George Washington University and Emory University, graduating from Emory in 1972. He served in the U.S. Air Force from 1962 until 1970, working at bases in Pennsylvania, Texas, and Alabama and attaining the rank of first lieutenant. He was an attorney for the Department of Housing and Urban Development and worked in real estate, family law, and litigation, mostly as a sole practitioner.
His judicial career started in the early 1980s, when he served as a city court judge in College Park, Fairburn, and Hapeville, Georgia. In 1987, he began serving as a part-time Fulton County Magistrate. In 1998, Judge Barnes was selected by then-governor Zell Miller to become a superior court judge in the Atlanta Judicial Circuit. “I knew the judge well. It was one of my proudest appointments,” said Miller.
Judge Barnes was an active member of the Pattern Jury Instruction Committee, offering many suggestions that have been incorporated into the Suggested Pattern Jury Instructions, both civil and criminal cases, used by all judges throughout the state on a daily basis in charging juries. As such, he was selected to serve as chairman of the subcommittee to revise, update, and improve the instructions dealing with civil matters. He supervised the project and the many judges who worked on and completed what is
now the fourth edition of the civil case instructions, released in July 2004. The work has received favorable comments by trial and appellate judges and lawyers throughout the State.
Though blessed with great intellectual capacity, Judge Barnes was better known for his kindly and disarming demeanor. He will be sorely missed, not only in his home jurisdiction but by judges throughout Georgia. Judge Barnes is survived by his wife, Claudia, two daughters, four stepchildren, and fourteen grandchildren. This volume is dedicated to the memory of Rowland W. Barnes.
CONTENTS
Preface Acknowledgments Evidence; Note Regarding Changes Based upon New Evidence Code uu... eeeeeeeeee 00.000 Preliminary General Instructions (Civil): Before Introduction of Evidence ......... 00.005 TCT RALLY E E cacties E E A A casenasee A T 00.010 Evidence sotie ee e S oes E a E EES 00.020 Parties (Optional) srsscisinnn iiei ies R E E a 00.030 PSUS OL ea KOTO) RAE EEE E EE E eects ea ene 00.040 Credibility- of Witnesses ainia E E E EE E EE E 00.050 Rüles of BViGdence usni i e a T E A E EESE 00.070 Tial Procedtre vitcécctueiet sls ces meek cot Nols. a A E E 00.080 Noté Takins By Jaron ra a E E EE 00.090 Conclude RaT S a a E A O ASE 00.100 Juror Use of Electronic Technology to Conduct Research on or Communicate about a Case siccsisccsissciarssecsadsiahy secasseavassadessaecanusean sasessuatenssdacesdnscdense 00.110 General Instructions 3.55 cgiceS cess lot cesagad na ati caiieande sce tdel oa aatinc eon anne 02.000 PATS ACHING Ghose EE EE EE acto stseshe tev boat oes theese se sceaeg ane¥aueey tae oe E ces teanaeee EE es 02.010 Burden of Proof; Generally; Preponderance of Evidence, Defined 0.0... eee eeeeee 02.020 Burden of Proof; Counterclaims; Clear and Convincing Evidence, Defined................. 02.030 Clear and Convincing Evidence 52: ses, asuactuecicecansacegeat es apacouatsegecedi ns ceaenganseestauenese tees 02.040 Eyidèénce Generally yong ae ice sans tas a data gansta gare ten as aidtotia ad els thc tease AERA 02.100 Evidence, Direct or Circumstantial .....0.....ccccccccceescsccccccccsssssscsccccccsssseusssccccesssseeusneeceeess 02.110 Spila ons oa, eenei Sahay sas cans cayatos tas eei aaa eea noes E T EEE 02.112 Judicia INC Sos hoch E ah Rig Sil te EE CR e 02.114 Limitinis-InstrUétionS 2 5 aed ay seaue Soucactegs ws cada S doce aac O mean EE E EE E E N 02.116 Limiting Instructions/ Conditional Admissibility... eee eeeeeeseeeseceeeeeeeeeeseecnaeenseeees 02.118 Expert WITNESSES. sormr cinien sr e Eea R RAS E AE E A EAEE 02.120 Expert Witness; Fair Market Value; Comparable Sales 0.0.0... .eecceeecceeeeeeeesteeeenteeees 02.121 Credibility- of WVU SSeS Seige 8 Rig syst dala lesa cua aaah oe hho Scien onde leads dee ce 02.130 Witness, Attacked (Old Impeached) jsiici.tsccceasesidesvssjecedasecsaneadesdaaeasuside eeteceaetasuabacesdenceane 02.150 Witness Supported isre enuacauctic ce acon a a anus attaceaseetiaes 02.154 Witness, Impeached, Credibility Attacked iss; 4 icctseticastedenseiateasdaacseetarseae 02.156 Prior Statements ssiri iiie ar E I lea dhavadaa EN A O EE ANER, 02.158 Bailuire to Produce: Evidence Geunisiecsuceyinsine neten eresas ene a Er S OE oR 02.160 Failure to Produce Witnesses; Generally ......ssnsossssesssesssesesseeessresseesseesseeesseeessresseesse 02.161 Failure to Produce Witnesses; Mutual Accessibility 0.0... ceeseeeeseceeeeceeeeeeeteeeeeaes 02.162 Failure to Produce Witnesses; Control by Party ..........cccceeecceessceeseeceeeteeeenteeeenaeeees 02.163 AdMISSIONS oirrese ieaie E E AA E E A N E AE RE E Ea aS 02.170 Acdülescence dr SeN E r A E E A T aa 02.171 Verdicts FOr OF Aaa T E E a a E dade Dede ES RATA doled tes 02.500
Verde UGE GIL. a a a e E EE a 02.510
Verdictin WV TINS fears trctin ttas ceases rede 1s ian a aa ct acon ccaetatagcanty aeanuat E a 02.520
Court Has: No Werest n Case aia cate ain cactcah E eeagaoes oaaded ge 02.530 Condemnation ycsccaseacsatisaeeadeashancteass desatenouvecdusancuandisayaddude E Ee EE OEE RTEA eTEN Easan 02.540 Sympathy sasn aa a a a a a a ia 02.550 Altèrjate UUM OS caii E E E E ts wea en 02.560 Jüry Final- In Ste OMS nonan a a EERSTE 02.570 Verdict (Hüns SUEY) ccir a E EA A E E E EA 02.700 Accord:and Satisfaction osoena siiin e aige ia a aeia 04.000 Accord and Satisfaction; Definitions; Example .........sssssesesseessseessersseesseresseerssresseesseessee 04.010 Accord and Satisfaction; Disputed Amount; Settlement 20.0.0... cece eeceeeeeeeeeeeeeeeneeeeeees 04.020 Accord and Satisfaction; Acceptance of Less than Amount of Debt ........ eee 04.030 Accord and Satisfaction; Check Reciting Full Payment 200.00... eeesceceeeeeeeeeeeeeeeeeeeees 04.040 Accord and Satisfaction; Cashed Check wo. ccceccccccccccccessessscscceccsseseeseeeceeseeees 04.041 Accord and Satisfaction; Uncashed Check woic.cccccccecceccecccccccssssscscccccesessesseecceseeees 04.042 PRB OTN CY ain sc ala ctl a ah dea nt Sub atte a tea a a sth gan dul aM mera ua oak dete 06.000 Agency Creaton sco Slee Se Sara ee ee nes a tee trada seca E ERSE 06.010 Agency; Responsibility of Principal; Extent ...... ce eeecesceseeeeseecsseceseeseeeeeaeecnaeenseenees 06.020 Agency; Authority of Agent; Extent sy5.0.0s.cs2seylaseavesoadslerdbes taassncctandoheddcagsucsatoashes detennestes 06.030 ASENCY; Proof OF css issssscisashiaccalsdenvestasantetansdedavatetaininsbaacisustann desedaaa sages cuavedcaes E REIES 06.040 Agency; Ratification of Agent’s Acts; Generally oo... ceeceeseeeseceseeneeeeeneesnaeenseeees 06.050 Agency; Ratification; Burden of Proof sisson aden ite eae gia eee 06.060 Agency; Ratification; Knowledge of Principal 0.0.0... ceeeceeesceceeneecesececeeeeeeeeeeeenteeeesaes 06.070 Agency Constructive NOUCE sers bncy teres oeastudgheneivns con iaygad tea edneeided obad taysuas santos antetacsees 06.080 BalMmênts a25ceicsies tans ccetl ia oaths iancta E E E TEE 08.000 Bailments; Generally eaire a A E anata aesee mated hoe 08.010 Bailments; Diligence Required; Generally .......sssnsssnssesssesesseeesseesseessessseessseersseesseesseessee 08.020 Bailments; Burden of Proof oo... cceecccccsccccccccsssssscecccccessssseescececcessessussseecescesseueenens 08.030 BS APL OF OOS AOS ccs hes ais a a Neat pis etl aia aie OR a i cela ls 08.040 Bailments; Definitions ........c cece a O A a ESES OE TEOSED TN 08.050 Bäilments: DEPOSI eee aeneae ea e aa E ea Ei aea aai 08.051 Bailments; Depositary for Hire ..........seseneseesseseesseesseesseesserssseessseesseesseesseeesseessseesseese 08.052 Baàilments; Naked Depösit sorrie a ea a a A eaeceeseaas 08.053 Depositaries for Hire; Naked Depositaries; Diligence Required of Each ......... 08.060 Bailees; Voluntary or Involuntary Depositaries; Liability for Naked: Depositar eremie eee A pasevatden ice aanewedouaas E i dens 08.061 Liability of Depositaries for Hire tisiseccsdcassaccesasscceastaneraceusteceden secvcddesedsnecessncasvandeceste 08.062 Bailments; Act of God; Definition ..........ssesssssoesessesssssesresessssssssteresrssssestereersssseseerersssses 08.070 Bailments; Diligence as Affecting Liability ..........snesesssesssssesssessensseseseeessseesseesseesseesseee 08.080 PTGS irs pees secs esate tanita E e E A E A Aa a 10.000 Carriers; Common Carriers; Definitions ..........c i ccceceeececcccccccsssssececceccesesssessescescesseeees 10.010 Carriers; Distinction as Question Of Fact ...........ccccccccccccccessessssececescceceesesseaeceeeeeeseseneaaees 10.020 Carriers; Diligence Required of Each sxvecnsc. ficient Bae a dee eee 10.030 Common Carriers to Transport and Deliver; Duty of ........ cee eeeeeeeeeneeceeeeeeeeeeeenteeeesaes 10.040
2 Contents—civil--updated August 2020
Strike Dy Anier S nip OV CES: aces ccatsat se dcase sarceusacapccanteeaseesatengeataaseecuedapaconcaseetuatenssaaaanes 10.050
Carriers; Acts of God and Public Enemies .................cccccseseseessessssssessssssssssssssssssessseeseees 10.060 Carriers; Limitation of Liability by Contract 20.0.0... eeeececesceecssececeeeeeeneeeeneeeeseeeenaeeees 10.070 Carriers; Passengers Definition 3.22; .4csescadssadepseasscagsaascineasoadeteagandeat edstanenseanduegeasbelonsenaer 10.080 Carriers sDili gence Required: roire a antag E E E E uae 10.090 Carriers; When Duty of Carrier Bnds:, 2225:..s1204.4¢eccassoseaete ct onccasetseqeeaaspecsensaueerchesseuinevews 10.100 Claims to Be Levied upon Property ..................ccccccssccssscecssececeseeeceseeeessececseeessseeeesas 12.000 Claims: Burden of Proofs Generally ss cissiccsissches ecassnscavenshcessaedecsdiavctes dae deceadneabansenotnceseva 12.010 CläamssFraüd: Generally siosioina ee eo Pe nL EN Coe OE eM EAE 12.020 Claims; Fraud; Husband and Wife; Generally ..0....... ce ceeceeeecceesseceeeeeceeeneeeesseeeenaeeeenaeeees 12.030 Claims; Spouse, Secret Equity of ~.ptiese.sascse ste casa tts ssucysdes decsaandncyebdedenes eauesasganesceessaamensoedes 12.040 Claims; Delay, Damages for; Burden of Proof .00....... eee eecceeeseceeeseeecnteeeeneeeeneeeenaeeees 12.050 Condemnation saissetiae a e A oe Reo 14.000 Condemnation; Preliminaries and the Pleadings ........es.soosssssessesssessesssseessseesseessersseeesees 14.010 Condemnation: S E A a A OG BOR 14.020 Condemnation; Burden of Proof ......eeeseesseseeseesessessssessrsrererersrerererererererererererrererrrerrrrrreee 14.030 Condemnation Damage; Direct ss sicu ceca cies os dachives as ces gs cas ueey tests sacdogos base ceosecaoeeuseackeotnetene 14.100 Condemnation; Property, Defined .cscsceyde.chSeavtcassla shod daetcvessesvenegtvantas dass dacedeedabad daatocenaye 14.110 Condemnation Damage; Consequential ............ccceessceeneceseeceseeeceeneeeceeeecsteeeeneeeenaeeees 14.120 Condemnation; Direct Damages for Property Taken or Used .00...... ee eeeeeeeseeeeeteeeenteeees 14.130 Condemnation; Consequential Damages for Property Not Taken .0....... eee eeeeeeeeteeees 14.140 Condemnation; Consequential Damage; Offset for Consequential Benefits; When Applicable ..0.......ceeceeecceceeeeeceeeeeceeeceenteeeeneeees 14.141 Condemnation; Consequential Damage; Benefits, General and Special as Affecting; Definitions 0, 1cca5s:45seacetanaeds dadeccanstevaess aavscenssavene te aeeeseeenes 14.142 Condemnation; Consequential Damage; Inconvenience .............ceeceeeseceesteeeenteeees 14.143 Condemnation; Consequential Damage; Prudent and Proper Construction and Maintenance .0..........cccccsessccccccecessesessecececececsesessseeeseceeeeeensaaees 14.144 Condemnation; Consequential Damage; Business, Removal of ...........:ceeseeeeseeees 14.145 Condemnation; Consequential Damage; Business, Injury to .......... ce eeeeeeeeeeeeeteeees 14.146 Condemnation; Fair Market Value; Defined oo... ceecccccccccccssssesseccecessssessenscesess 14.200 Condemnation; Fair Market Value; Opinion Evidence 2.0.0.0... eeeceeeseceesteeeeeteeeenseeees 14.210 Condemnation; Fair Market Value; Expert Witness ..........eceescceesececseeeeesteeeeneeeenseeees 14.220 Condemnation; All Uses to Be Considered; Test of Adaptability 00... eeeeeeees 14.230 Condemnation; Fair Market Value Not Necessarily Same as Actual Value ................. 14.240 Condemnation; Peculiar Value to Owner; Sentimental or speculative: V ale orien jaya tosses a satus ede atd cass ee thandee A SN 14.250 Condemnation; Change in Value Resulting from Condemnation 2.0.0.0... ceeeeeeeeeneeeee 14.260 Condemnation: Zoning, Effect of qs cessseanscccasedsvanseassacaause chosagnoscensaybsuaeduontvcandeegeedaceonstelavs 14.270 Condemnation; View Of Premises ..........c.cccccccsssssssecccccccceesssssscccccccsssusssscseccsssuueusneececess 14.280 Condemnation; Limited-Access Road; Definition .......cc cc eeecceccccccceeesseseccecceseseeseeseceeees 14.300 Condemnation; Limited-Access Road; Deprivation of Access Rights ............eeeeeeeees 14.310 Condemnation; Leased Property ssci.sssceiiescsevstaveiccadessdvaithecesacacssgeadeaseaseeasseccatesduncnesnaectys 14.400 Verdict QuotiEntiss.cssSsdvccesss cages seeitsccssbesuevagh acess a a a a Measdasesuesseeededelas 14.500
Contents—civil--updated August 2020 3
Drury Tara Ni Sa CULO Scie ot ve con hn ces tee ia chealacacshiat ae sibsatoncedndve dean eceeneetuads 14.510
Condemnation: Verdict; Generally acess shar i canoe E thea a eae E hat 14.520 Cönträcts naiak Fuse nte heap fags aia aae edu ghana 16.000 Contracts: Definition’: sis ocsessstiest ecsehh caine tients a sass shed ca ipaetednds a a a a a idi 16.010 Contracts: Essential Sicscrics.2AcscsscvatheSoces suds Sos dedod sss cance bayaibed ions dads Sav dededa RAE E 16.020 Contracts Assent: Generally toss aiuustcntes hier o catamaran etait 16.030 Contracts; Assent; Letters and Replies ..ccsccccsssicveisreayacaisdgracsanncvsaratgsoaedesensactasheseneateetect 16.040 Contracts; Assent; Sales of Goods .......ccceecececcccccccssesescecccccccessessseccceccessusessececescssseueenens 16.050 Contracts: NOV atin iis iiicccccervcecvach codices a E de Rice Maeda dbs va Bek dad Gu odd ca dvds dose avd oa et dade 16.060 Contracts; Temporary Departure; Generally oo... eee eeeeeeeceeseeeseeceseeeeeeeeaeecsaeenseeees 16.100 Contracts; Temporary Departure; Sales Of Goods ....... eee ceesceeeeneeceeeeeceeeeeeeeeeecnteeeesaes 16.110 Contracts; Good Faith Performance, Duty Of ........ eee ceeececeeseeeeseeeceeeeeceeeeeceeeeeeneeeesaes 16.200 Contracts; Economic Impossibility of Performance 00.0... cee eseesseceseceeeeeeseecnaeeneeees 16.210 Contracts; Accident and Mistake .........cccccceccccccccccssessscecccccecsssesesssceccesssssessceceecssseueenens 16.220
Contracts; Accident; Definition ......... cc eeececcccccccccssesescecccccesessesssesccecssssusenseesceeseeees 16.221 Contracts; Mistake; Definition; Degree Of Proof ......... eee eeeseeceeneeceeeeeceeeeeceeeeecneeeesaes 16.300 Contracts; Mistake Of Law menan a a a a aa a aiia 16.310 Coönttacts: Mistake Of Fact erena a A NA ee eee 16.320 Contracts; Reformation; Mutual Mistake ..........oseeseesnennessessssseresssssssseererrssssssesrerreessssese 16.330 (Contracts: Diligence ING ois ONCE arrini i E E EREE tae uae RE E 16.400 Contracts; Duty to Ascertain Facts sca ccascsccesisateagencsganasunssepvesecsaseneasanse lea tyaaceessacemsaatea 16.410 Contracts; Misrepresentation; Fraud <.c.ccc.csdescscssaiencceutevevsienssusecadssaveescdennsdeaendeedaceees enlea 16.420 Contracts; Recission or Cancellation; Unilateral Mistake ........ccccc cc cceeeseeccccceceeeeeees 16.500 Contracts; Execution of Contract; Unilateral Mistake .o....... eee ccccceseeseseecccceeeeseenees 16.510 Contracts =A CCOUNE cis tiieds20e eink Bek whee Reds oe ode dbds Wide BI Re Tis Se OBE Meth coded 16.600 Contracts; Account; Defimition neiss eeccccccccccccsssssscecccccesessssessscesccssssseeseeeceecesssuuenees 16.610 Contracts; Account; Defendant Must Authorize Account ....e.eesesesesesererererererererererereree 16.620 Contracts; Account; Plaintiff Must Prove Correctness .......esesesesesererererererererererrrererereree 16.630 Contracts s Account Stated es. cee a Beads coe hb sass des A as a? 16.640 Contracts; Account Stated by Implication 20.0... eee ceesseceesseceeneeeeeneeceeneeceeeeeeseeeeenteeeesaes 16.650 Contracts: Quantum: Merit siaieccssscieesitn leckcd esas te isk cae shades A ba aaah RTA 16.700 Contracts; Quantum Meruit; Statutory Provision .........eeceeeseeceeneeceseeeceeeeeeeeeeeeeteeeesaes 16.710 Contracts; Quantum Meruit, Definition .0............ccccceccccccececeeeesensececececeesssessaeceeeceeeeeeneas 16.720 Contracts; Quantum Meruit; Amount Of Recovery .........ecceeesseceeneeceeeeeceeeeeeeeeeeceteeeesaes 16.730 Contracts; Quantum Meruit; Not Applicable Where
Express: Contract Exists siseses ieina i a a E e a a R 16.740 Contracts; Quantum Meruit; Essential Requisites for Recovery .......sesssseesseessessseesseee 16.750 Contracts; Quantum Meruit, Circumstances between Near Relatives
for Jury to Determine seriernes tiini iie nne e iE a eiea oraaa iaa 16.760 Contracts; RESCISSION a a a e se a a a R s e ona EnS 16.800 Contracts: Rescission: by Consente meenet riea a E a E E 16.810 Contracts; Rescission; for Nonperformance ........ssesssesssesessseesseessersseeeseesseeesseesseesseesseee 16.820 Contracts; Rescission; Status Quo Ante Required ..........cccecescceesscceeeeeeeesseceenseceeneeeenes 16.830 Contract Damages orcii n aae Monona 18.000 Contract Dania wes erases n w decay tails su tae aoa ates eee ose es 18.010
4 Contents—civil--updated August 2020
Contract Damages: Agreement 4: 1<c5).2sccdessvaccastecsteteet once asansumeaaieaccanteaueeistenccainene 18.011
Contract Damages; Nominal Damages ........... ec eeeeeeeeeeseeeseeceseeesneeeneeceaeceseeeseeeeaeees 18.012 Contract Damages; Attorney’s Fees (Expenses of Litigation); Generally ........0....... 18.020
Attorney’s Fees (Expenses of Litigation); Notes, Provisions in seses 18.021
Attorney’s Fees (Expenses of Litigation); Exemplary Damage .......... eee eee 18.022 Contract Damages; Remote or Consequential 20.0.0... eeecceeescceeeseceeseececsneeeeneeeenaeeeenaeeees 18.030 Contract: Damages Mteres tizersin istae donee ges ainne Ein as ESSES 18.040 Contract Damages; Warranty, Breach of; Land; Personalty 0.0.0... eeeeeeseceesseeeeeteeees 18.050
Watranty; Breachot: Landeo cits sassieycow a aaa beau dee A A a ATESA OEE Eoas 18.051
Waârtanty; Breach: of; Personal (Voi cy ois oneei eaa eat one 18.052 Contract Damages; Expenses: sses iseseisana 18.060 Contract Damages; Lessen Damages, Duty to o.oo... eeeceeeecceeeseceeseeceesteeeeneeeetaeerenaeeess 18.070 Debtor and ‘Creduor: 25555552 AR Gee eee eats 20.000 Debtor and Creditor; Acts Void as Against Creditors; Examples ............cscceeeseeeeeeeeees 20.010 Debtor and Creditor; Good Faith, Test Of ........cccccce ccc cccccessescscccccccessesesscccccsssseeaeaeeseeees 20.020 Debtor and Creditor; Credit on Faith of Title of Spouse ....... eee ceeecceeeseceesseeeenteeeeneeees 20.030 Debtor and Creditor; Right of Debtor to Prefer Creditors oe. eee eeseeeseeeeeeeneeenneeees 20.040 Divorce, Equitable Division of Property, and Alimony ....................0::cccccccesseeeeseeees 22.000 Divorce (Child Support); Preliminary Instructions 0.0... eee ceeeeeeeesseeesseceeeeeeeeeeneecaeenes 22.001 Divorce; In trOduCti OMe zs cs sie desi daca Soccaheeh fs donee Sosa Sekissa dos lecdede aos gs bea os E 22.005 Divorce; How Granted (if contested) .........ccccccccccccccccessessssecececcceceesesseaeceseeeeseeessnteseeeeees 22.010 General Charge: (Grounds) surisi ionni eiiis a n reies easi a e g nitas 22.020 Adultery eeens a e e a a Ea a a a raen ES Ee OEE S EEES 22.025 Cruel Treatment orse i en a e a ERE a e E E Re E E 22.030 Cruel Treatment; Single Act .....ss.sssessesesseesseseseeeresersseesseesserssereseessseesseesseesseresseeesseesseesse 22.040 Crue) Treatment; Mental Cruëlty nicsen a a 22.050 Condonatigh ossessioni pissan aeia E EAEE S ESEE E ESEAS EAEE ERAS 22.060 Irretrievably Broken Marriage inc cfio sg Gas ese Scania de Now sass cue od seas as os eed setae estaaedesboseened 22.070 Divorce; Issues Incidental riiin iii ii en a i i a 22.090 Equitable Division of Property .scc.cessecesssocssaiadesicacbanseasaesjeccdsanasad sa dede seegoante sonsae Codnedeaee 22.100 General sicci innate tat pat tats a ae cic) anaes ies meena Niece ees a Atal es can 22.110 Classification OF Property: pesse tae eke a cet ieee Sead setae ade date oe N a 22.120
Dainim M Properly asics ess clea E ATAT E 22.121
Source of: Funds cios chanptaac then Maecenas e e a S T R aiis 22.122
Marital Property rninn i a ai sbasadaadessaeey ened suuhddaaes tuaeaaes EEE 22,123
Appreciation in Value of Nonmarital Property .0.......eeeceeecceceeeeeceeeeeeeteeeenteeeenaeeees 22.124 Property Title ice paces tetera a ates eae heels A cag arab que enacted aaa eaa esto! 22.130 actors: im Equitable Division: ooe n E soca ds cca esa tece sadaseeaaecta A A E 22.150 Methods of Equitable Division 1.22%, cosscisosudeiesd seed acagsoaacadeshosaceasednsegd nao tarnteccatsegoadeaeoantedans 22.170 Resulting Trust; Equitable Division ..............eccccessseceenceceeneeceeaceceeeeeceeneecseeeeceeeeeeneeeenaes 22.180 Inceptive Fraud (Constructive Trust); Equitable Division ......... cs eeseeseeeeeeeereeeeseeeeetees 22.182 Partitioning; Equitable Divisiow isteni oon eh ee eter EEA etna 22.184 Coordination of Equitable Division with Nonmarital/Separate Property .............. 22.190 Introduction to Alimony i 0a Pe tess wig va talus a a a aah dae saat awe votes 22.200
Contents—civil--updated August 2020 5
Alimo 24 53.0 seats en cco aaa aaa a ER 22.210
Adultery Aae aaa atg ch va Mite gaa aera ttind ca aah vetetas sacs bantiseitbaud E ee paambaas cemented hae 22.220 Desertion serceto ena paee E E E aE e dua Ee EE OE ETEA TETEN 22.230 Amount of AMOY eseo eaaa tesqesueadaaacanaelacagatdahoetonaneseusete 22.240 Types of Alimony Awards; Method of Payment ....ssesesessseeesseeseesessresressersresrersresseseeesee 22.250 RGSS EUS PINION Y serio aesir at ance a a E rene em ee 22.260 Inceptive Fraud (Constructive Trust); Alimony ......... cee eeceeseceseeceeeeeceeceeeeeeeeenneeeesaes 22.270 Partitioning: ALIMONY: 2.css.ccsdsesaecesesedeyd catenvacdesaccesvarsusasaisnavaidasesvacaasoeaaeca shasdeva bedestaetverace 22.280 Coordination of Alimony and Nonmarital/Separate Property ...........eecceeeseceesseeeesteeeeees 22.290 Child: Süpport: Determined Latër ss lee eat aisle aha E deta eal as Seats va aan Mise deanna 22.300 BOP OF Verdict iesnas srna reae n a E E EE E E aE EEA oS 22.640
Form of Verdict; Divorce (if at issue) oo... ccccccessssccecececeesessnsececesceseeenesseseeeseeeens 22.641
Form of Verdict; Nonmarital Property aia atiotwsa ened ound piace: 22.642
Form of Verdict; Equitable Division of Marital Property .......ssesesesesssessssessseessees 22.643
Fötm of- Verdict: AMOY. sieisen aa iere e ai 22.644
Form of Verdict; Resulting Trust):.2.44280 ies oe oli eee eae 22.645
Form of Verdict; Inceptive Fraud 2.2.4, oecah sis ciaareo rath lacededaievaeedieecemea tend lucedanndans 22.646 Merdict Formirana a E a EA E a 22.700 Child: SUpport oinn a ea ae a ao Raa os 23.000 Child: Support: Oblig atron Leeyuancae petate Maren Onan E E E nnn Dee Men Neen 23.001 Child Support; Number of Children cic0.cc0caccceaiastesssncnaauanenstapceseesasaeseasanse laa tvanceaseaceasaanee 23.050 Gross Income saer e a ter aa aca en sles e a E EEA E E ee aieea 23.100 Gross: Income: DehNed? E E EAE E EE EE A EA 23.110 Income from Self-Employment .........ssesesssesssseeesseesseessesssesssseeesstesseesseesseessseressresseesseesset 23.120 Fringe Benets amaie a a a se wat aca a Gp 23.130 Variable Income sniene ninn n a Ea E E EEEE AEEA oS 23.300 Irregular or One-Time Income .....s..sssnesessseseseseesseesseessessseresseeesseessetsseesseeesseeesseesseesseesset 23.310 Military Compensation and Allowances .......eseeseeesesesesesresseesresressessrerressersresrersreseeseeesee 23.320 Exclusions from Neomenia 23.330 HUET: Income rsads an e e a e a ahs t a shes a 23.340 Underèmploy Ment ssie nseni ernie eae rE IE a ETE A E aa EEst 23.350
Undéremployment: Factis cecina e a R R E E aE 23.352
Care tak Cte Explained zs seni n a a E N evaded: 23.355
Underemployment; Imputed Income .........esssssessseesseesseessesessetssstesseesseesseessseessseesseese 23.357
Underemployment; Not for Armed Services ........cceesscessceceenceceeeeeceeeeecseeeeeeneeeesaes 23.359 Verdict og cies cad entei E E E A A a raa a E E Ea E EE EEEo 23.450 19 [es SE: 8 0) 0 AEE EE E AE AEEA E Se erry ere rmery rare ae een 23.500 Deviation? e HA det opdatesh Pace teh ne ieee eee Aiea a Sead ON 23.510
Deviation; When Authorized/Prohibited .......seseseseseseseseserererererererererererererererererereree 23.515 Deviation; Nonparent Custodian’s Income ...........::ceessecessceceeseeceeneeceeeeeceeceeceeeeeeneeeenaes 23.520 Hich PS ais decd Sas tapes a A spe eg Rise say wae es ag se a ets 23.530 MW Dotee aa cots E E EA E A occas san cach taeece T 23.535 Othër Health Related Insurance: ice: scsscsscnsatesyaiecdant neyo hee i nnn i 23.540
Life Insurance: 3siiccsassossncdhsvaccons seeeeastanesccdaseseneiareavahdusnaeaeaannsvaasaty SE TETES 23.545 Child and Dependent Care Tax Credit ..........no.nnonesssessessseesseeessetssetsseesserssseesssresseesseessee 23.550
Travel Expensere rmen e a E s E E E E E AEE 23.555
6 Contents—civil--updated August 2020
PRIMING TS edited cchiet as ot oas te ceatad yest te daitdit as sta ocak csi upctaenchial as eon agadieates cco letemtlat at tons ares 23.560
IWEOTIS A Cir enin cheese ash geek eh aaa eet aaa E eens ee gee eta saga tence ees 23.565 DECS Permanency Plan. -saccciscsovssdiscgeasiepaveleil, ivaccessasuesiscevaaedsousadeesedeeudsseveatasdenacoavnaveane 23.570 Extraordinary Expense; Generally <.csstcsssssdetanayacsgncacadestegsastesgaateetaedotasanooaateageanaetoneatdes 23.575 Extraordinary Expense; Education .......seesseeeseseeeeeseessrsresseesrerressetsteseresteseseresresseseresresst 23.577 Special Expense Incurred for Child Rearing .......sseseeeesesseeessrsesesreeseeseresressereresresseesresees 23.578 Extraordinary Expense; Medical io ic5 case colons Aad eel dette en schmitt Saal gra ek ee te 23.579 Extended Parenting Time sinisiin osoei r aae e a iaiia a 23.580 Nónspecifi Deviations: 635.2225 ee a eoa e n EE OEA aed dae EA tate Seog 23.585 Verdict: Deviation oitenta Ala Peete eis hv eR ie eA eh 23.590 Verdict: FOr etaissis sessed cae$ a a ocaca bubdeaeeaite cats a Sedhcededs suagesutel a a A toon 23.595 Modification or Initial Determination of Child Support —Parties
Never Married aeree ees eaa eiemass Gi a Olea as ei Se ele 23.700
Modification or Initial Determination of Child Support —Parties
Never Married; Preliminary Instruction .0..........eccceesceceeececeseeeceeneeceeeeeceeeeeceteeeeeeeeeees 23.701
Modification or Initial Determination of Child Support —Parties
Never Married; Final Instruction .0..............ccccccccccceceseseseseseseseseseseseseseseseseseseseseseeees 23.705 Employer and Employee ................:.cccccccesssecessecescecesaeeceeneeceeaeecseneeceeeeecseeeeceeeeeseeeeens 24.000 Employer, Duties:of; Generally as.clesiorecsspshinenste aiaas sey senshi aueaghadeestieky. Sotawisenit eaten 24.010 Employer, Selection and Retention of Employees ....... eee eeeceeeeeeseeceeceeeeeeeeeeneeenaeens 24.020 Employer, Place to Work; Generally c5c.t 311s cccases races isa ceaule.cetess as edadeasecciaciunersasaeeeaaieas 24.030 Employer, Place to Work; Changing Conditions 200.0... eeeeeeeseeeeneeceseeeeeeeeeeeeneeenaeens 24.040 Employer, Presumption of Ordinary Care ...... eee eeeescecsecesecseeeeseeeesseesnaecseesseeeeneees 24.050 Employer, Duty to Warn Pmployee:.c.234.2:33 cae A eee 24.060 Employee; Duty of: Fellow Employees 2.22.0.0. ye oe eee eed 24.070 Employee, Machinery i2siccccdo.c socsd nguieaithiateodeaiedeorseeteaaedigeetssatearteelaaieniumenaedae 24.080 Employee, Placeto: WOtk omenia ce es aielet eG tetas ciel ela Rake che. 24.090 Employee; Assumption of RISK sereine lia Se oie deal pads 24.100 Employee, Children, Diligence Required Of 0.00... cee ceeeeseeseceneceeeeeseeeeaeeceaeceseesseeeeneees 24.110 Employee, Railroad Employees; Generally 20.0.0... cee eeeeccecescceeseeeeeseeceeseeeeeneeeeneeeenaeeees 24.200 Employee, Railroad Employees; Federal Employer’ s Liability Act ..... eee eee 24.210 Employee, Railroad Employees; Statutory Violations by Railroad 0... eee eeeeeee 24.220 Employee, Railroad Employees; Comparative Negligence Rule Applies ..............0 24.230 Employee, Railroad Employees; Care for Own Safety oo... cee eeeeseessecsseceseeeeeeenaeenee 24.240 Fraud and Deceit iicccscdvisiesissieiccsssncaiidsssccssousesdiceagaaesaretaaetdovessdetaecadasibadtis ates sacvocsecs 26.000 Fraud and Deceit; Definitions; Presumption and Proof ...........eceeeeeceeseeceeeteeeenteeeenseeees 26.010 Fraud and Deceit; Contracts, Effect OM ..............ccc0cssesesssesessssessessessessessesesssssssssesssesesesees 26.020 Fraud and Deceit; Diligence Required of Plaintiff oo... eee eesecseceseeeseeeeseeeaeenes 26.030 Fraud and Deceit; Misrepresentation and Concealment .0...... ee ceeeeeeeesecsseceeeeeeneeeaeenes 26.040 Fraud and Deceit; Rescission and Restitution; Generally 0.0... eee eeeeeceesseceenteeeeneeees 26.050 Fraud and Deceit; Goods, Sale of; Generally... cee eeceeceecceeesececseeeeeeteeeeseeeeneeeenaeeees 26.100 Fraud and Deceit; Goods, Sale of; Trover ..............c.cc0ceseeessssessesssssssssssssssssssssessssssseseeees 26.110 Fraud ‘and Deceit: Releases: siiccccccdiscccadessvccscdeseccussssescscdesdccnavsse secede te ccubussescuceesdcendussbeevees 26.200 Fraud and Deceit; Lands, Sale Of oo... ccccceecceccccccccssssssssccccccssseeussssceccessssueaseesseses 26.300 Fraud and Deceit; Goods, Sale of; Generally (Commercial Code) .........ceeeeeeeeeeeeteeees 26.400
Contents—civil--updated August 2020 7
Fraud and Deceit; Damages; Generally (Commercial Code) ........eeeseeeeeeceeeseeeeeteeeenes 26.500 Fraud and Deceit; Buyer’s Incidental and Consequential
Damages (Commercial Code) a. s.ccseseasececdasaceversvaavcatusnsvaciaseaveisaseess consbaseave teceuaternenae’ 26.510 Fraud and Deceit; Buyer’s Incidental Damages ....0.......ceecceeseeeeeeeeeeeteeeeeteeeees 26.511 Fraud and Deceit; Buyer’s Consequential Damages .......... cee eeeeeseceeeeeeeeeenees 26.512 Fraud and Deceit; Seller’s Incidental Damages (Commercial Code) ..........ceeeeeeeeeeee 26.520 GIPS es ans essa eia avn asa Gens A E a Ta onset EASES TEE E to aeRO aE 28.000 Gifts © Essentials A CCE DUAIICE xcs heen orana ee a t E EA ated EE 28.010 Gifts; Personal Property; Delivery; Gemerall ys .......0scsvsessncsgsecgsnsseveancedenchcessndedeasss¥enees 28.020 Gifts; Delivery of Personal Property to Third Person; Recovery ........ceeeeeseeseeeereeeeees 28.030 Gifts; Realty; Gifts from Parent to Child oo... cee ec eeceeceencecssececeseeeceeceeceeeeeeseeeeceeeeeesaes 28.040 Gifts; Realty Plus Valuable Improvement 0.0.0.0... ceeeeseeeeseecseceseeeseeesaeeceaecneesseeeenees 28.050 Implied Obligation to Pay 34306040. oie Shee a eae 30.000 Implied: Obligations; Generally sccccssccccssecssccsasoteeavsedvdanevessiansscs socacscogeaecoevadentaaneeenea apenas 30.010 Implied Obligations: Usual Practice siacice4 olitecean ues gel ail elven onsaee 30.100 Implied Obligations; Family Transactions; Generally ........ ee eee eeseceseceeeeeeeeenaeeneeees 30.200 Implied Obligations; Parent and Child oes eeeeesseeeseceseeeeseecsaeceseesseeeeaeecsaeenseenees 30.210 Implied Obligations; Property, Transfer Of 0.0... eee eesceseceeeeeeseeeseecneeeeeeesaeessaeenseesees 30.300 Implied Obligations; Money Had and Received 00.0... ceeeeceeeseecneeceseceseeesseecnaeenseeeees 30.400 Insurance opacities nani Dek aia a amt oe E A an ln aaa ide 32.000 Insurance; Misrepresentation; Generally ..........ceecceeseccesscecesscecesneeceeneecseeeecseeeesteeeesaes 32.010 Insurance; Misrepresentations, Innocent 00.0... eeeceeneeceececeeneecesneeceseeeceeceecseeeecsteeeesaes 32.020 Insurance: ComCe aliments ina an biets a dec asodh aecedelsahd tangs pecans Uh iows a 32.030 Insurance; Failure to Pay Claim; Bad Patthivs..is3i ssjenesenxeeenss4pcaseheeaeeesiongeaisetvaccseasasansantes 32.100 Insurance; Suicide, Presumption Against ........0.....csccscceccesseccetsceconteccensecceseeconteecentees 32.200 Insurable Interest: E d E E A decal sees tN betas ea ee eth eee 32.300 Insurable Tnterese: Property a .as.ccaaseek geayzavirpaeseee scenes vasiceedeatquadaaeataacigeeaeovacks NSE ESELS 32.400 Interest and USUrY Lorien niia a as a AAE E E E N hacen ened 34.000 Usury Definition; sisi aa A E E R TA N 34.010 Usury; Intention; Indirect Means wiv. cccsseccccesssievetrwevsacies geaesanececdsaedeaecassnsaaeasbcseceanuenace 34.020 Landlord and Tenant 2:..s:2::20.::ihosaedeeten ison a apse ed ad aeesesties a ecto eee 36.000 Landlord and Tenant; Duty of Landlord; Generally 0.0... cee eeeececeeneeceeececeeeeeeeteeeesaes 36.010 Landlord and Tenant; Duty of Landlord at Time of Rental ...... eee eeeeeeeeeereeeneeees 36.020 Landlord and Tenant; Duty of Landlord during Rental ...... eee eeeeeeeeeseeeeeeeeeeeees 36.030 Landlord and Tenant; Liability of Landlord; Generally .........e eee eeecceeeeceeeteeeeeteeeeeee 36.200 Landlord and Tenant; Liability of Landlord; Patent Defects;
Liability to Tenantiaeth ee oan si vaca EET ET REE aai 36.210 Landlord and Tenant; Liability of Landlord during Rental;
Possession (Partial) by Landlord oi... eeeceeeccecssececsecceceeeeeceeececssececseeeesaeeeenaeeeaas 36.220 Landlord and Tenant; Liability of Landlord; Latent Defects 0000.0... eee eeeeeeteeeeeteeeeees 36.230 Landlord and Tenant; Liability of Landlord; Repairs during Tenancy ......... eee 36.240 Landlord and Tenant; Duty of Tenant; Notice to Landlord... eeeeeeseceesteeeenteeeeees 36.300
8 Contents—civil--updated August 2020
Landlord and Tenant; Duty of Tenant; Avoidance of Danger ...........eeeceeeeceeeeeeeeneeeees 36.310
Landlord and Tenant; Tenants; Privies .................:00c0seesssseessesssssesssssssssesssssesssessseseseeseees 36.400 Landlord and Tenant; Tenant, Duty of; Repairs; Setoff against Rent;
DAMAGES. sesioen ei a a a a sagan a aae aaa taaa aiet 36.500 Landlord and Tenant; Dispossessory Warrants (Tenants Holding Over) seses 36.600 Limitation of ACHODS 553 vitor arcdencnlan eectiatel aoa a R a N toe aioe 38.000 Statute of Limitations; Explanation viccsasisssesccssvaccesssccyeasssvcscdsndeatenssccceanecodanededsassoanasenns 38.010 Statute of Limitations; Fraud as Affecting Limitations; Generally «00... eeeeeeeeeeees 38.100 Statute of Limitations; Fraud as Affecting Limitations;
Diligence: OF Plaintifi nisin aaa nea ads estat sa ces as EE a a T EEES 38.110 Statute of Limitations; New Promise; Generally .......ssnssssssessssssseseseeeesseesseeesseesseesseessees 38.200 Statute of Limitations; New Promise; Letters (Correspondence) ........ssssssssesssesseessesesee 38.210 Limitation of Actions; Bankruptcy Cases; New Promise; Generally .............eeeeeeeeees 38.300 Limitation of Actions; Bankruptcy Cases; Promise between
Adjudication and Discharge sacsiccaissteccaacasvsssctvsnsdcncssecdascalegs iecestacad evaesductesetiacchdesedavs 38.310 Limitation of Actions; Laches .........ccccccccccccccccseessscscccccccssssssscsccccssseseesscscecsssssuueususcesess 38.400 Mem Gal Capacity E E EE Sess esnctades A vacau ooo eget oaoracaicas woveadaoat 40.000 Mental Capacity; Insane Persons; Definition; Generally ..........ceeeeceeeseeeeeseeeenteeeeneeeees 40.010 Mental Capacity; Insane Persons; Guardianship and
Civil Rights Generally soirs e aces cc eg cas E NE A E A sensi tadeee R 40.020 Mental Capacity; Insane Persons; Contractual Power; Generally;
Guardianship as Affecting Necessaries, Liability foro... eee eeeeeseeeeeeeeeeeneeenaeeees 40.030 Mental Capacity; Insane Persons; Tort Liability Of oe eeeeeseeseceeeeeeeeeeaeeesaeenes 40.040 Mental Incapacity at Time of Marriage; Incurable
Mental-TMlness:DIVGtCe cise cinsssksd.cvedncadsesedesiceddned dovaedads Seceneaduewsde sient E NEG 40.050 Mental Capacity; Testamentary Capacity, Test Of oo... ceeeeeeeeeneecsseceseeeseeeeaeecsaeenes 40.060 Mental Capacity; Contractual Capacity, Test Of ..... eee eeseeeeceseeeneecnaeeeseesseeeeneessaeenes 40.070 Motör Vehicles- orse aed ae sat aed eevee e ae cutee eee Ales 42.000 Motor Vehicles; Speed and Control; Generally .0....... cece eeecceesscceeseeeeeeseeeeseeceeneeeenaeeees 42.010 Motor Vehicles; Definitions e a a A a a a a ERES aaa 42.100 Motor Vehicles; Definitions; Intersection ..........eseseserererereeererererrrsrrrrrrrerereerrrrrerereerereeees 42.110 Motor Vehicles: Definitions: Roadway <ss2:i05c.yescsas acca eves ts okscevadceoasdacs osseassmeav ences natons 42.120 Motor Vehicles; Definitions; Highway 2..c45s¢ocisvaqs sacxsues¥esteces so hand oenkeneas tease evaeatevoeeee 42.130 Motor Vehicles; Definitions; Through Highway .............:cesccecssececeseceeseeceesteeeeseeeeenaeeees 42.140 Motor Vehicles; Definitions; Right-of-Way ..........ccccceesscecssececseececseeeeeseeeeeneeeeneeeenaeeees 42.150 Motor Vehicles; Right-of-Way; Miscellaneous Regulations .00..... cece eeeeeeeeeeeeeneeeneeeees 42.200 Motor Vehicles; Right-of-Way; Highways Crossing Each Other ...........ceeeeeseeeeeeeeees 42.210 Motor Vehicles; Right-of-Way; T-Shaped Intersection ..........eccceeeseceesseceesseeeenteeeenseeees 42.220 Motor Vehicles; Right-of-Way; Yield Signs ...........ccceesccecsseceeesececeeeeeesteeeeseeeeseeeenaeeees 42.230 Motor Vehicles; Right-of-Way; Stop Signs ..........ecceeesccecssceceseceeeseeeeseeceeneeeeneeeeaeeees 42.240 Motor Vehicles; Right-of-Way; Left Tums: ociaccistcntenadeaaiacetonsisast eats 42.250 Motor Vehicles; Right-of-Way; Private Roads .........eeeceeeseceessececsseceeeteeeeneeeeseeeeaeeees 42.260 Motor Vehicles; Right-of-Way; Alleys, Driveways, or Buildings 00... eeeeeeeeeeeeees 42.270 Motor Vehicles; Right-of-Way; Pedestrians on Roadways ..........cceseessecsseceseeeneeeeaeeees 42.300
Contents—civil--updated August 2020 9
Motor Vehicles; Pedestrians on Highway; Generally 00.0... eee eeeeceessceeeseceenteeeeneeeenes 42.310
Motor Vehicles; Rule of the Road (Meeting) \i4..45s5c4cascceaccdesadacsasscspenassesettedeceecedenndenens 42.400 Negotiable Instruments 1.52055 deceshs di aeracsaadsi Risdeavdoeagagshitiandgiea i hedge teed 44.000 Negotiable Instruments; Delivery; Negotiations; Indorsement 0.0.0.0... cece eeseeeeeeeeeee 44.010 Negotiation; Payable to Order a, cscxi2s a ceascaspacantavecadayougacees soxesun WaKeeaesecotsgeteastaee? 44.011 Negotiation: Payable to Beater ..ccneadvapieuteni dan andeiie itanindieten ae 44.012 Negotiation; Special Indorsement ........... cee eeeeeessececsecceceeeeeceeeeeceececseeeeneeeenaeeeaes 44.013 Negotiation; Blank Indorsement .00.........ceeeeeeeccecsecceceeceeceeeeeceeeeceeeeeseeeeneeeenaeeeaas 44.014 Negotiable Instruments; Indorsement, Necessity of; Effect of Delivery Withoüt scrasa eeraa prn his cena E N E aE 44.020 Negotiable Instruments; Negotiability; Fraud, Incapacity, and Other Defects as Affecting Rescission; Void Transactions ...........::escceeeseeeeeteeeeeees 44.100 Nuisantes oere cs ose a 2a saves ro pte aN E E A RRR 46.000 Nuisaneeés® Definition ainara aa a a an vasbcxcais Meacaats vetsaesvaned cave sbezestsaeoaees 46.010 Nuisances: Atte Right to yo.cbscas.cctedes ascuacnfessetey A sues eed E k EnG 46.020 Nuisances; Reasonable Use of Property, Duty Of ........ eee ceeececeeneeceeeeeceeeeeeeeneeeneeeenaes 46.030 Nuisances; Public Nuisances, Private Right to Abate .......ceeceeeseeceeeeeceeeeeeeeeeeeeteeeenaes 46.040 Partneėrship: es iste Sek sas tae aca cad es sc cea ae es n a n A ias 48.000 PArinershi py Defined: ereenn a ns a a E A 48.010 Partnership; Creation; Generally and as to Third Persons ....ssecceeseseeeeeereseeeeereereersee 48.020 Limited Partnerships under the Revised Uniform Limited Partnership Actes tenne e a e a E Ea EEEE ESE ET GS 48.100 Limited Partnership; Definition .........sesesssesssseesssesserssersserssseessseessetsseesseessseessseesseesseesset 48.110 Limited: Partier; Liability Of. 2ss.cesececnssag ceasosen eie SE aiaa 48.120 Limited Partner; Right of Inspection and Information ....ssssesseeseseesesseseresressersresrersesee 48.130 Limited Partnership; General Partner; Rights, Powers, and Liabilities «0.0.0... 48.140 Limited Partnership; Contribution, Forms Of ..........eecccessseceeneeceeececeeeeeceeceeceseeeeeeeeesaes 48.150 Limited Partner; Distribution upon Withdrawal 00.0... eee eeeeeeeeeeeeeneeceseeeseeeeneeeaeens 48.160 Limited Partnership; Partnership Interest, Nature Of 00.0.0... ceeceeeseeceeeceeeeeeeeeeeeeceteeeesaes 48.170 Limited Partner; Right to Bring Action wo... cece eescecsseceseeeeeeeeseecaeceseeeseeeeseessaeenseesaes 48.180 Limited Partnerships under the Uniform Limited Partnership Act ....... eee eeeeeeeeeee 48.200 Limited: Partnership De Hirai Ons 2035.6. 03 desc sai cioas saad cs daate ons acon actin a saees ar eia 48.210 Limited Partnership; Obligations isc vase eee eee eee 48.220 Limited Partnership; Contributions ..2..ccccsccctssecdccissnsssasiesncausssnseeatasessacesseadentaacesen cade ssaee 48.230 Limited Partnership; False Statements in Certificate, Liability foro... eee 48.240 Limited Partnership; Rights sisiscsciis.cccasasesehesassacedeasecsaatassscaddesaccseatecsastehadunedeusncaavsdecsne 48.250 Limited Partnership; Withdrawal or Reduction of Contributions 2.00.0... eeeeeeeeee 48.260 Limited Partnership; Conditions for Receipt of Contribution... ee eeeeeeeees 48.261 Limited Partnership; Demand for Return of Contribution ....... cee eeeeeeeeeeeeees 48.262 Limited Partnership; Right to Receive Cash 2: ccs gee cktia loan gee aes 48.263 Limited Partnership; Dissolution of Partnership «00.0.0... eeseeeceeeeeeeseeeeeeeneeeeeeeeeneees 48.264 Limited Partnership; Liability to Partnership 20.0.0... cee eeeccecesceceeececeeeeeeseeceeseeeeneeeenas 48.270 Limited Partnership; Nature of Interest in Partnership 20.0.0... eesceeeeeeeeeneeesseceseeeeees 48.280 Limited ‘Partnership; Death, Effect of .si..siccciecsdcaessiccentstassicdasnasdecsossdantacssnad conneederseseasee 48.290
10 Contents—civil--updated August 2020
Limited Partnership; General Partners; Rights, Powers; Liabilities ......0........ 48.295
Partnership; Employee Distinguished from Partner .0....... ci ceeeeceeeseeseceseeeeeeeeseeeaeeees 48.300 Partnership; Other Transactions ..d:siscscsxscecdeslevsadcodensecvascesednatecsacdebnddeednscveatesdnsnceueaveasa 48.400 PGS CHI (ION: sisri etach sh sata saiak eataa niet eu obit a She Sea as E east A ates ele 8 ca 50.000 Prescription: Definition snaran a a E E E NS 50.010 Prescription: Possession, Actual siere eena a E T 50.100 Prescription; Possession, Actual; Definition 2.0.0... eeeeeceecceessececeeeeecsneeeeseceeneeeenaeeees 50.110 Prescription; Possession, Actual; Boundaries and Nature .0..........eccceeseceesseeeenteeees 50.111 Prescription; Possession, Actual; Duration ............cceceeesececesececseeceeseeeeeseeeesaeeeenaeeees 50.112 Prescription; Possession, COnStUCIIVE:. 5.545955 ssscataqceceds dete denasdancedadesoedadagar cada danspeomantines 50.121 Prescription; Possession, Constructive; Definition; Conflicting Clams eteren a E Sebeaueedoatanc A E 50.122 Prescription; Possession, Constructive; Recorded Deeds Bondars serria e aa a a aa a a NEon soist 50.123 Prescription; Possession, Constructive; Duration, Fraud and Forgery reesen ata cance deaeea tc a a SST 50.124 Prescription; Possession, Constructive; Color of Title 00... eee eeeeceeesseceesteeeeneeees 50.125 Prescription; Acquiescence in LAME: sic.ss:shacsasssecsxdceasaccaeascesndeadyoracde sa cccesaseaceatdadusndeatnavesss 50.200 Prescriptions Agreed Lane siocaire eee aeeoeiaeo aeni rS oE eos 50.210 Prescription; Fraud to Prevent Prescription .......sesseeseseeeseseesseseeseessereresressereresrensessresees 50.220 Prescription: CotenantS seoce aa a a E ASe EEES IA 50.300 Private: Ways eraa a N ATE A E AET A TEAR E RSE 52.000 Private Ways; Establishment by Statute (Ways of Necessity) ......ssesssessssssesseessesssesesees 52.001 Private Ways: Generally is Liha chalice its tan a a AE E i E E 52.010 Private Ways; Indispensalit yc 21c, 20% sansezsuaetesaesecatasovacct dase cease dasqscaaesoccads oueecagasoeobaeee 52.020 Private Ways; Establishment by Prescription ............eeeececeseceessececeeeceeseeeeeneeeeseerenaeeees 52.100 Private Ways; Permissive Usè iscacisiscacssseacaasssdesacsasnecade sadeaudaauareteesoaccdennvcesavessbanedeonedans 52.200 Procėéssioning osote oo eee a i i i eat eet ate ROR ee, 54.000 Processi@nmitig General (RUGS: oinnes ana iar n a S 54.010 PROCSSSIONIN 2 ISS ie ae ea aa E a Eaa eaaa EE ii: 54.020 Processioning; Muniments of Title 0.0... eee ceesscesscecesececeeececeeececeeceeceeeeecseeecseeeeeeeeeens 54.030 Processioning; Possession, Actual (Adverse) ..........:cceesceceeseeceseeeceeneeceeceeceeneecseeeeeeaeeeens 54.040 Processioning Landmarks; Reputation rye oscsyvetiandvenivanss ln cease visage cabanas uahinge eee 54.050 Rast Od COLOSSUS 55 55500005423 cscsscaasasaaguaaeaaianesyade aga seanan esate N dees mated wean 56.000 Railroad Crossings; Signals Outside Municipalities (Blowpost Law) „eseese 56.001 Railroad Crossings; Signals within Municipalities; Bell oo... eeeeeeesseceeeeeeeeeeneees 56.010 Railroad Crossings: General aceon ie E a E R ee ave E E E ee ele 56.100 Railroad Crossings; Maintenance of Grade Crossings .......sseessesssesssesssssessseesseessersseeesees 56.110 Railroad Crossings; Stop at Railroad Grade Crossings .......seessesesesssesssseeessresseessersseesees 56.120 Railroad Crossings; Obedience to Signal Indicating PXPPUOAC COL A. B w Ti a APEP E EEE E E ceca as anes 56.121 Railroad Crossings; All Vehicles Must Stop at Certain Railroad Grade Crossings x; sisccas.ccssdacasustacceus scenes sbasansadess cecapdavad svaessacteneabacchdoeceate 56.122
Contents—civil--updated August 2020 11
Railroad Crossings; Certain Vehicles Must Stop at All
Railroäd Crossings sepsis tts casi E E A a subeih cara R N a S 56.123
Railroad Crossings; Moving Heavy Equipment at
Railroad: Grade: CrosSin Gs: sicuris essre geis n onire ai aa NSS Ne 56.124 SUED IONE isrann aa a aA Aa N eee 58.000 Subrogation; Circumstances Creating Right .........ssesessseessssssessseresseessstessresseesseresseesssees 58.010 TOTIS ecito E E eE SE aN EEE E ESEE EENE 60.000 Torts: AMtrOGUCTION a n a N aa e a 60.001 Torts; Ordinary Negligence (Ordinary Diligence) .........snssssesssssessessessserssseesssresseesseessee 60.010 Torts; Slight Negligence (Extraordinary Diligence) .....eeseeseseeseesesererersersrrsrrrsressesrresee 60.020 Torts; Gross Negligence (Slight Diligence) .......ssssssssesssesssssesssresserssessseeesseessseessresseesset 60.030 Torts: Children, Dues are: Dyarrr seere e e AE oa EESE 60.040 Torts NEG BENCE Per Se Sapa aer a E E E E E eiege ee 60.050 Torts; Negligence; One Act Sufficient sccscicctacoteasisedvdantiessecnes ch seauaa cansaetvensdcataaneeenea hpstes 60.060 Torts; Care for Own Safety, Duty to Exercise .........sesesssesssseeessresseesseesseresseerssressresseesset 60.110 Torts; Avoidance of Consequences .........seseseseesesesseesseesseesereessetsstessersseeeseeeseeesseesseesset 60.120 TOTES SANS SUMMON OE RISK os ace coe sce igs a A A E R ORT 60.130 Torts: TEIMIGE SEM CY’ misss eusroet cancted goes bees osaneus yas eeeseasa ee tabes tags nase ahs da vpucneted shes eateseoeel 60.150 TOMS SA CCIAENU 4 zi czttertedstssvccseetiued a Sunvanswannd sah eectents dec odads subeedataneh an eos gee a aai 60.160 Torts: Imputed Negligence ainiaan ts actua a E O a omega A 60.170
Torts; Imputed Negligence; Generally sca.urie sucuiaiestcns taney aedielare nents 60.171
Torts; Imputed Negligence; Children... eee ceeesceesseceeneeceeeeeceeneeceeeeeceeeeeeseeeeesaes 60.172
Torts; Imputed Negligence; Guests .c.sscessocstevercesiasvebesaesseaeseedehes seayandediwd ies anteceenees 60.173 Torts; Proximate Cause; Definition .........cccccc cc ccccceeeeececcccccscsssssssecccccessssesseeecescssesenenens 60.200
Torts; Proximate Cause; Foreseeability; Natural and Probable
Consequence; Intervening Cause Rules (Chain Reaction Situation) ................ 60.202 Torts; Proximate Cause; Last Clear Chance .........cccccccccccccccccssesessecccccesessessceceeceseseeenens 60.210 Torts; Counterclaims; Burden of Proof, Comparative Negligence,
Proximate Cause, and Damages as Applied to Verdict .........eceeesceeeeeeeceeeeeeeeeeeees 60.220 Negligence Amplified; Agency, Generally 00... cee eee eesecesceseeeeeeseeceseceseeesaeecnaeenseenaes 60.300 Negligence Amplified; Spouse, Child, or Employee ..........cee ce eseesseceseeeeeeeeseeesaeeneeees 60.310 Negligence Amplified; Willful Torts 5 :.cciscjin historia Snasiee ele aie te eee 60.320 Negligence Amplified; Employees, When Employer Not Liable for ......... eee 60.330 Negligence Amplified; Family Purpose Doctrine ......0.. cee cee eeseeeseceseeeseeeeaeecaeenseeeees 60.340 Negligence Amplified; Independent Contractor .00...... ee eeeeeeceeeseeeseceseeeeeeeeneecnaeenseeees 60.350 Dangerous Instrumentalities cecesiajsdesgcessccesssde detested eaetcede sags antoaaancte ane eed agaeseteraee eae 60.400 Dangerous Instrumentalities; Entrusting to Others ........ eee eee esseceseeeeeeeeseeceaeenseeeeees 60.410 Dangerous Instrumentalities; Use, Generally .0.....e cee eeeccecesececenececseeeeeneeessaeeeenaeeeenas 60.420 Animals, Injuries by; Generally 04:5. sasadSeacasaadaser’ seassenssoenatdeghanasensededudtonadtaayeaccatvegiadaens 60.500 Animals; Knowledge of Viciousness ............csccccesececssececseccecssececsccecsceessaececsaecessaeerenas 60.510 DAVES S? 5 ass ue ct hcen.otecal a as EE dca anemtcat sc eau en cae a acc! 60.600 Inwitees? Definition sense seve eect ccd eo teec nsec ees eee ee ee te bennett he ee 60.610 Invitees DUty tO ismine e an Ea nEaN ETEEN eE OEE 60.620 Invitees; Actual or Constructive Knowledge ...........s.sessssseesseesseessessseeeeseeessresseesseesseesseee 60.625 Invitees; Imphed Invitation osio ein ei i i i a S 60.630
12 Contents—civil--updated August 2020
TeIGENSEES: secseccshestes TE AEE E E E TETEE TETE 60.700
EAN TAO a EAA E A E E E A E E S 60.710 Lacenseées? General: Test: EE E EAE E teal E ES 60.720 Eicensees: DUY 00: hinm a aa nea gesnestesdcguaatedasssdad antedgaatebeadtageaneetonteaaer 60.730 Prespassets: Definition: Duty tOSerr ei a EE E EEE E E 60.750 TGS ASE LOO UTIL a E OE 60.800 Settlement of TOTS seseracy axes cand cee dasa) E E EA aan dug a E EEA O ES 60.900 Torts: Specihic, seneo a anaa ae a ie a aa ee ee 62.000 Malicious Prosecution, aoaie nE EE E A E TE eave RD 62.001 Malicious Prosecution; Generally 2. s3.s scaseorisasiuscdate raed ds te ceeateeasteaneees me ease 62.010 Malicious Prosecution; Advice of Counsel ......cccccccccccccccssesceccccccccsssssssscscceccssssseseesecesess 62.020 False. Imprisonment eoin teena e E a EEE A AE A RERE 62.100 Balse. Imprisonment; Generally resoan e igeri ises 62.110 False Imprisonment; Warrant, Authority Of ........sesesssesssessesseesseessessseeesseessseesseesseessereseee 62.120 Malicious Arrest) osunssnminui mae a E E A 62.200 MaliciousAtrest: Generally mennase a a R a aE 62.210 Malicious Arrest; Malice, Defined oo... cc cceeesceccccccccssssssssccccccsssseuscececcessssuueeascesess 62.220 Malicious Arrest; Probable Cause, Want Of .......ccccccccccccccccsescecccccccessssssecccccsssseeneaseceeess 62.230 Malicious Arrest; Exempt Persons, Arrest Of .........ccccceesccecsseceeesececeeececsteeeeseeeenaeerenaeeees 62.240 Physician OKA RE CUI ER Of iernii ig i E ea cial busses aoe EE ene aware 62.300 Common Knowledge; Expert Not Required ............ccceeecceceseceeeseceeseeeeeseeeeeneeeeneeeeaeeees 62.310 Physician, Skill Required; After-Acquired Information, Hindsight ........ ee 62.311 Hospital; Degree of Care: cccccsssvecssciseacacdaspassatasassaccesvnseadascesentads E A E ENES 62.320 ATONE Yo LRG OUIT ECON E EE E EEEE E EE 62.400 Consent to MJU eere a a e ase a ae 62.500 Consent:to Injury; Generally serecsresssinniiein niinen i R 62.510 Consent to-Injury; Railroads -Jerina nE EE A a Ea as 62.520 Strict Liability in Tort; Products Liability 2... ancien eee nae eka: 62.600 Strict Liability in Tort; General Explanation and Burden of Proof „s.es 62.610 Strict Liability; Manufacturing Defect; Generally ...... eee eeeceeeseceeeneeeesneeeeneeeenaeeeenes 62.620 Strict Liability; Manufacturing Defect; Deviation from Designo... eee eeseeeeeeeeeee 62.630 Stict Liability: Desien Defect 5. x.c.254;soccn), atest as see a a EE Ti teat 62.640 Strict Liability; Design Defect; Risk-Utility Test and Factors ©... 62.650 Strict Liability; Design Defect; Alternative Design Evidence ........ cece eeeeeeseeeeeeeeeee 62.660 Strict Liability; Design Defect; Compliance with Industry standards or Government Rau lalOns: 25 5sawccpceutessivasnchivaeade as oabays Aaiestaaese ie Ne 62.670 Defect Due to Inadequate Warning ..2:%,.<5)<esacede sdececata gated tase cdosatsedeararsoncatesorenatemecoaieks 62.680 Duty to Warn; Foreseeable and Unforeseeable Uses 0.0... eee eeeeeeeseeeeeteceeeteeeeneeees 62.681 Duty to Warn; Open and Obvious Danger .......... ce eeeeeeecceceeececeeeeeeeeeeeeneeesnaeeeenaeeees 62.682 Continuing Duty to Wati essre caradacesaenctes sede cacabeed asad Tereon N EES Ee Or EPESI oes emenntenays 62.683 Assumption of the Risk Defense 2.150 ..cc.eidvess ia BAR es ae is 62.700 Assumption of the Risk Defense; Products Liability 0.0... cee eeeeeeceseceeeseeeeeeeeeenaeeees 62.710 Jury Deliberations Product Defect 5s. cycies iexsecisncustdeparesesatscasagy aacasanentd auese syanesaceiweeactendar 62.720 ADUSIVE: Litigation sis2c<c0edscecssndsensaevannaccavasedeyateaensalausdsveioaavesuaei se eneduss ceoanvcnsatesabunedeasnccays 62.730 Abusive Litigation; Voluntary Termination 000.0... cece eeeesseceseeceseeeseeeeaeecsaeenseensees 62.731 Abusive Litigation; Good Patty. 62.3 cite ia ews e pate ee 62.732
Contents—civil--updated August 2020 13
Abusive Litigation; Successful Claim :2..25:az.c0c 0; saccancesucetael cages teenie atecaind 62.733
Abusive Litigation; Verdict for Plaintiff/Defendant 00.0.0... ee eeseeeeeereeereeenneeees 62.734
Abusive Litigation; Damages cy.cccsscseseaccissicsess ls coessaapecaceusseceuentpevaate bonaddessaccevascnenans 62.735 Negligent Construction 4, 0.4.22 qseshssadssasd niaaa aaaeaii 62.740 Duties of Financial Institution Regarding Certificates of Deposit 00.0.0... eeeeeeeeeeeeee 62.750 Tort Damaáses. eer ka a a n eeecaper saan stn aoe a ea eects 66.000 Tort Damages; Preliminary Instructions ..0.........ceeeceeeeeceeesececeeeeeceeeeeceeeeeseeeesaeeeenaeeeeaas 66.001 Tort Damages; Generally; Nominal Damages ..............eecccecescceeesececeneeeesteeeeneeeenaeeeenas 66.010 Tort Damages Duty 00 Lessen sate lia va aces ta de pantech Uae a an et Daa an 66.015 Tort Damages; Personal Property; Generally 0.0.0... eee eeeeecesececeeececseeeeseeeeesaeeeesaeeeenes 66.020 Tort Damages; Personal Property; Not to Exceed Value;
Items to- Be Considered). fires pace tenes vial eseina ea beatae cena held Obra 66.030 Tort Damages; Expenses; Generally; Medical Expenses 00.0... eeseeeceeeseeeneeeeeceseeeeees 66.040 Tort Damages; Earnings, Past; Loss of sccssickscussadsensadaonssvenaeeestocsuenssdedactaeadacassbceaaseshedbats 66.100 Tort Damages: Earnings. 1155 iacisseicesvusadaanasesiiacsdescdacandesdusvendeaceaunaden O AT SA a E E aiaa 66.200
Tort Damages; Earnings; Loss of Earnings ......eeeseseseeseesrrsresrersersrerrreseesresreeseesseee 66.201
Tort Damages; Earnings; Life Expectancy vce cctscectcitees easton ogaeeetes 66.202
Tort Damages; Earnings; Average Annual Earnings ...0........:eseeeseceeeeeeeeeeeeenaeenes 66.203
Tort Damages; Earnings; Present Cash Value ......... cei ceeceeesceeseeeseceseeeeeeeeaeeeaeenes 66.204 Tort Damages: Life xpeclaney «4.05004 ennn eT RE ERE EL E ERE E 66.300
Tort Damages; Life Expectancy; Generally ......essseseseeseesrresesressersresrersersersereseessese 66.301
Tort Damages; Life Expectancy; Mortality Tables .....eeeeseeeeeeeseeersreerrseresersse 66.302
Tort Damages; Life Expectancy; Annuity Tables... eeeeeseceseeeeeeeeeeenneenes 66.303
Tort Damages; Life Expectancy; Full Value of Life 0... ee ceeeeeeeeeeneeenneeees 66.304 Tort Damages: © Ons Orin rnia Ta eas ates acai ap T vay eee ae ese ees 66.400
Tort Damages; Consortium; Permanent Loss, Present Cash
Value of; Joint Life Expectancy Is Measure of Damages .............c:cceseeesteeeeeee 66.401 Tort Damages; Pain and Suffering 4.08 delete eit cei uni et eee 66.500
Tort Damages; Pain and Suffering; Generally; Mental; Future ........... ee eeeeeeeeeee 66.501
Tort Damages; Pain and Suffering; Future... cece ceesceceeneeceeeeeceeeeeeceeeeenaeeeenas 66.503
Tort Damages; Pain and Suffering; Preexisting Injury; Aggravation ...............00 66.504 General Tort Damages for Injury to Plaintiff s Peace,
Happiness, and- Feeling suias capi sestcietensh e E E T E AS 66.600 Punitive Liability. issectae E a a Ena araa a EAS TEES 66.700
Clear and Convincing Evidence cs, s.c.cscesscsyicsgavescosddsvqhes desvavcesqdetes deasauaediuaehes deancoenacs 66.701
Punitive. Liability, continued \6.2.5:2235 ccpesesisend cass saccades abscada stece Wan sdaatasastaa odededeesaadedans 66.702 Nonproduct Liábility “Cap aseen a a ts aE S E ENEE TAER E 66.710
Intent to Hatmi; Actine Withono een a e a E E RAA 66.711
Intent to Harm; Amplified 55.12. .ccsetsscseasasscenets voesandies diacsanesecdss te deaceasunseceasecenanaavenans 66.712 Influence of Alcohol, Drugs; Acting Under wc. cee cc ceesceceeneeceeeeeceeeeeceeeeeceeeeecnneeeesaes 66.720
Prescription Dru gs; Exte pun seiersen ee Neue aha a a 66.721 Nonproduct Liability “Cap”; Burden of Proof... ee eeeceeeeeeseeeeseceseeeeeeeeneecnaeenseeees 66.730 Punitive Damages; Amount; Generally 0.0.0... ceeecceeseeceececesnceceeneecesneeceeeecseeeeceeeeesaes 66.740
Punitive Damages; Measure -icicecsisesseceedisscoeedavonschausapracaanncceasa ys doaeds suncadeendeesaneavenae’ 66.741 Punitive Damages; Amount; Guidelines 200.0... eeeceeesseceeneecesneeceeeeeceeneecseeeecseeecneeeesaes 66.750 Reprehensibility; Amplified fice taenehee ce Blais eae eee 66.760
14 Contents—civil--updated August 2020
Limiting- INStrUcti ONS anea ac state ocak csi AE A acct om T S a aise anaaecs 66.770
Extraterritonality tesira a toca nse bouetiaeasnudeda E uaa sangre E E E TONS 66.771
Dissimilar Conduct: jcc. ects ela eee ee eee ede 66.772
Bias, Sympathy; PIETUGICE crac, c.tonctsstesdagharsyacsgessoatesdeguastedgassded andedgoonoosadtegeanectonssaied 66.773 Punitive, Damages? Conclusion: miraa Savana vacant E EEE E eee 66.780 Tort Damages; Apportionment of Damages 0.0.0.0... eeecceeeecceceeececeeeeeceeeecseeeeeaeeeenaeeees 66.810 Tort Damages; Chemical Damage to Crops ..........escceeesccesesececeeeeeeseeeeeseeeeneeeenaeeeenaeeees 66.900 PEDO VER tnie Ras eed cee et haat tas a see o ie ee tbs a ases rlgh ertsi 70.000 Trover; Conversion; When Proof Unnecessary ............cccccssecessscceesseceeseeceeseeeeseeeenaeeees 70.010 Trover; Tender at First Term; Effect on Costs ............ccccccsssesssessseseessssssssssssssssessssseseees 70.020 Troyer Verdict, FIECHONGOF sec. Sided eces iach cade dees rise Secgti deck a a Seca shou Sass O iain 70.030 Trover; Damages, Measure: OF. cssccisccsedseavartesdenadiassaszae eiia ai e iina 70.100 Trover; Damages; Highest Proved Value ....... sees ceeeesscecsseceseeesceeeneecaecseeeseeesneecsaenes 70.110 Trover; Damages; Highest Proved Value; Definition 2.0.0... cee eeeeeeseceeeceseeeeeeenaeenes 70.120 Trover; Damages; Highest Proved Value; Hire and Interest Barred 0.0... eee 70.130 Trover; Damages; Property and Hire; Valuation Date 0... eee eeeeeseceseceeeeeeeeenaeenes 70.140 Trover; Damages; Property and Hire; Interest 0.0... eee eeeeeeeeeeneeeeseceseesseeeeneeesaeenes 70.150 Trover; Damages; Secured Property, Amount of Verdict for 00... eee eeeeeeeeeeereeeeneeees 70.160 Trover; Value; Contract Price Prima Facie Evidence of Actual Value .................000000 70.170 TEUSIS ges csel ecatl a oo ecelg as ¥ cent E a tease apace ied ic teed eels aaa 72.000 Trust Definitions? 22th ite ie Sei eee Sloth leon eos 72.010 Trusts, Express and Implied; Definition 0.0... ee ee eeeeesneceseeeeeeeeaeecaeceseesseeseaeeesaeenes 72.100 Express Trusts} Reguirements oes dias svete yadedctes teore eatea gnc) E EE ESE SE E EOE 72.200 Express, Trasts; Capacity tò Create innesi te eines E ieee 72.210 Express Trūsts: PUTOS a setsi.daczacias a tions a haa ss acess tiga dal aS ETR 72.220 Express Trusts; Duration of Trust ei ciecsoicesecteesirastices. esate etait cucete st ncteied oma tu tiie es cee see 72.230 Express Trusts; Parol Evidence y.icii5ccedsscecseaseeesecassaseadassdvandesvarsceesnasevensvessatesebunedeauecass 72.240 Implied Trüsts; Requirements nia a ea aa en eae eee eae 72.300 Implied ‘Trusts; Generally sinna i e a ea BO 72.310 Implied Trusts; Resulting Trust :.scivsc2ssdsedeatssused egideiecesiceatindeeda hance deed ecediadeedade 72.320 Implied Trusts; Purchase Money Resulting Trust ...........ceccceeeseceessececeeeeeeeteeeeneeeenaeeees 72.330 Implied Trusts; (Constructive TrUSt 25 wxs aout tdaced naira tile a 72.340 Implied Trusts: Parol Evidences soba Seiad desc eke ss Gea ste eds ede ea eee 72.350 Trusts; Fiduciary Relationship as Creating Trust 2.0.0... eecceceseceesseceesseceeseeeeeneeeeneeees 72.400 Undüe TAM Cs ccs fo assay Scns datas Secs a ance nck od ag sk ad a iaa Oe a eas aC 74.000 Undue Influence; Definition nati enaa n A AA A 74.010 Undue Influence; Duress; Statutory Definition .........sesssessesseesseessesssereseressetessesseesseeesens 74.100 Undue Influence; Duress; Harm, Threats of ........ccccccc ccc ccsssssecccccccceesssssccecesssseusesesceeees 74.110 Undue Influence; Duress; Economic Duress .........ccc icici cceseesseccccccceususscecceccesssseeeaeeseeees 74.120 Undue Influence; Inadequacy of Consideration ...........ccceesceceeseeceeeeeeceeeeeceeeeeeneeeeneeees 74.200 Undue Influence; Inadequacy of Consideration; Generally ...... cece eeeeeseeeseeeeeeeeeeees 74.210 Undue Influence; Inadequacy of Consideration; Fraud as Indicated by ...... ee 74.220 Undue Influence; Inadequacy of Consideration; When Based on
Great Disparity of Mental Ability <isc.s:ccsisesicasssedesarasensascvesedentescceedeacegecesesuseadecasedaats 74.230
Contents—civil--updated August 2020 15
Wills: Generally; Definitions resin waite tnay'ca adncah e R E ES 76.010 Wills; Determination Whether Instrument Is a Will ..oeeeeeeeesceeecseerersesesrersrsrsrsrrreee 76.011 Wills: Power of- Festator sscccscccssicstsscccecetsonsesactcedetesecsessteagenoect copusdasl a aoai ate 76.012 Wills; When It Takes Effect ........0.0.ccccccccecsescssssssssssssssssssssssssssssssssssssesssesssssessseseeees 76.013
Wills; Testamentary Capacity; Minimum Age; Conviction of Crime ......... eee 76.100
Wills; Testamentary Capacity; Decided and Rational Desire,
Incapacity to Contract; Insanity; Advanced Age or Eccentricity ceecee 76.110 Wills; Testamentary Capacity; Freedom of Volition... eeeeeeesseceeeeeeeeeeseeenaeenes 76.120 Wills; Execution and Attestation; Required Writing;
Signing; Witnesses? Codicil ici sisiedisssiaaviedededsasesacsssbnedees ninsi 76.200 Wills; Execution and Attestation; Knowledge of Contents of
Wall Dy Festator: teisi nra e cael Sean tego pte edel E ASS 76.210 Wills; Execution and Attestation; Competency of Witness ...........:ceeecceeeeeceeeteeeesteeeeeee 76.220 Wills; Execution and Attestation; Testamentary Gift to
Witness or Witness s SPOUSE yi seas oui casvnug paren Seb ine EE uate ne aes 76.230 Wills; Execution and Attestation; Self-Proved Will or Codicil ..............cccccseeeeeeeseeeeeees 76.240 Wills; Revocation and Republication; Power of Testator ..........ceecceeeeceeeececeteeeeeteeeenee 76.300 Wills; Revocation and Republication; Intent ........ eee eeeeeceeneeeeeeeeceeeeeeseeeecseeeenaeerenas 76.310 Wills; Revocation and Republication; Express or Implied Revocation ............ eee 76.320 Wills; Revocation and Republication; Subsequent Will or
Other Written Instrument sesia ccc ccccceesessssecececececeessnseceeeecesesesesssaeeeceeeeseeeneaaes 76.330 Wills; Revocation and Republication; Destruction or
Obliteration of Will or Material Portion Thereof .............c.cccccccccessessssecececeeeeeensaees 76.340 Wills; Revocation and Republication; Revival or
Republication of Previous Will ...2s0csoscaséccssesdocasaeasapenseeestecaenesccesdeesnad teageacesaeeeeedacne 76.350 Wills; Revocation and Republication; Presumption of Intent 2.0.0.0... eeeeeeeeeeeeteeeeeee 76.360 Wills; Revocation and Republication; Effect of Implied Revocation ........... cece 76.410 Wills; Revocation and Republication; Effect of Testator’s Marriage or
Birth or Adoption of Child; Provision in Will for Class of Children .......0....00.. 76.420 Wills; Revocation and Republication; Effect of Testator’s Divorce,
Annulment, or Remarriage to Former Spouse ..........ceseeecceeseeeseeceeceseeeeeeeeseeesaeenes 76.430 Wills; Revocation and Republication; Republication of Revoked Will ou... ee 76.440 Wills; Probate; Burden of Proof .......cc cece cccccccsssescececcccccesssscscsccecssesessussescceseseseneeegss 76.500 DALT) POE A E vanessa aisseiayheaeaei gins ah E a aw eae 78.000 Year's Support; Entitlement 242200205. eae sea Oe 78.010 Year’s Support, Amount of Award : jaye 26 2 co.cdseacaeciasacedageveeetesoccaeateuaeceansossatasognate tees 78.020 Year’s Support; Burden of Proof 2c s24,. 205 cdsecns aed cncssaacenstats duescaasucia ates aca ebasantgnacs eae 78.030 Year’s Support; Vesting of Title to Property Set Apart;
Minor Children by Different Spouses sciai2.3feasies secs lees dedeheeecteestet Regdees eens ceeboees 78.040
16 Contents—civil--updated August 2020
PREFACE
The art of charging a jury is one of the most refined duties of a trial judge. . . . [T]he trial judge in each case has the unique task of objectively and clearly explaining to the jury . . . the applicable law which governs the facts they find to be true. This must be done in such a manner that no harmful error is committed in stating or failing to state . . . the law, but more importantly, should be done in simple, straightforward,
and understandable language for the layperson.
Senior Judge James B. O’Connor, Oconee Judicial Circuit,
Past Member, Pattern Jury Instructions Committee
The Pattern Jury Instructions Committee of the Council of Superior Court Judges of Georgia hopes these suggested jury instructions for civil cases will be useful and informative in dealing with most of the issues that confront judges daily in the trial courts by making available accurate instructions in modern, lay language.
These instructions are submitted as suggestions only. They have not been submitted to or approved by the appellate courts of Georgia, although many have been approved in principle in specific cases. There are two basic problems with relying on any standard, or
pattern, instruction:
1) No suggested charges can cover every situation, and the task will ever belong to the trial judge to “tailor” or adapt the charge material to the case on trial. Each judge must carefully adjust these charges, removing all language not applicable and making changes and additions required to fit the case on trial when necessary. At times, minor adjustments will suffice, but a careful rewriting of an entire suggested charge may be required.
2) The law is constantly changing, and new, possibly unanticipated facts may render a standard charge—even an otherwise correct one—inappropriate in certain circumstances. Although the committee meets frequently and stays in touch by various means of communication, it is possible that a change may occur before the
committee can adequately respond with a caveat or revised charge.
Both the committee and the council recognize that the responsibility of instructing the jury rests solely with the trial judge. There is much greater danger in overcharging than in undercharging a jury, and judges are encouraged to charge only on the principles required and no others.
The language contained in these instructions is intended to be gender neutral to the extent feasible. There will be instances in which the judge will need to make adjustments for singular versus plural pronouns for defendants or victims. In those instances in which there is an option, the judge should select the appropriate pronoun.
The committee has made some necessary changes for the sake of accuracy, clarity, and even safety; for the most part, however, there is little substantive change in the fifth edition. The main change is the addition of a new section on child support charges. As this section was created to assist in implementing the new child support guidelines, the committee invites your feedback on the charges to allow us to refine them.
The assistance of all Georgia judges is needed to keep these suggested instructions updated. It is requested that each trial judge carefully review this material and provide the committee with suggestions for additions or improvements to these instructions. Suggestions may be sent to Pattern Jury Instructions Committee, Council of Superior Court Judges, 18 Capitol Square, Suite 104, Atlanta, Georgia 30334, or to any member of the committee.
The judges listed below composed the Pattern Jury Instructions Committee for the
fifth edition of Suggested Pattern Jury Instructions, Volume I: Civil Cases, State of
Georgia.
Frank C. Mills, III, Chair David E. Barrett, Vice Chair John D. Allen Jeff Bagley
S. Phillip Brown David L. Cavender Wade Crumbley Alford J. Dempsey, Jr. Roger W. Dunaway, Jr. David T. Emerson William M. Fleming, Jr. Penny Freesemann Ralph Hicks Harold Hinesley Frank D. Horkan Edward D. Lukemire Gary C. McCorvey John E. Morse, Jr.
J. Lee Parrott Mary Staley
Brenda S. Weaver Jon Bo Wood
2 Preface
ACKNOWLEDGMENTS
Suggested Pattern Jury Instructions, by its nature, is and must be a work in progress. All members of the current Pattern Jury Instructions Committee contributed innumerable hours in reviewing, researching, revising, and editing. But to credit just the committee would be an egregious oversight. The current committee started with a product that was already highly “refined”; to paraphrase Sir Isaac Newton, we truly “stood on the shoulders of giants.” In addition, many of the additions or corrections came not from the membership of the committee but from the many judges who have previously served on the committee or who have responded to our solicitation for input and assistance from the trial bench. In short, there are too many to adequately acknowledge.
Still, we would be remiss if we did not recognize the contributions of Judge Rowland Barnes of the Atlanta Judicial Circuit and Judge David Barrett of the Enotah Judicial Circuit. Revision of the civil instructions was a more voluminous task than the criminal revision in that there was simply a greater amount of and more diverse subject matter to review. Secondly, there was more need for change. Judge Barnes chaired this most recent revision of the civil pattern jury instructions and, through his personal effort in reviewing and consolidating the many submissions, is due much of the credit for the completion of this project. Judge Barrett is Vice Chairman of the Pattern Jury Instructions Committee of the Council of Superior Court Judges of Georgia. His contribution, not only to this effort but to the work of the committee as a whole for many years, has been invaluable. It is not too much to say that he is largely responsible for the quality of both the
civil and criminal instructions.
Frank C. Mills II Chief Judge, Blue Ridge Judicial Circuit, and
Chairman, Pattern Jury Instructions Committee
00.000 Evidence; Note Regarding Changes Based upon New Evidence Code
(Introduction—Georgia Law 2011, p. 99, which adopted the new evidence code, (the Georgia version of the Federal Rules) included, in pertinent part, the following preamble: “Tt is the intent of the General Assembly in enacting this Act to adopt the Federal Rules of Evidence, as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal as of January 1, 2013 to the extent that such interpretation is consistent with the Constitution of Georgia. Where conflicts were found to exist among the decisions of the various circuit courts of appeal interpreting the federal rules of evidence,
the General Assembly considered the decisions of the 11th Circuit Court of Appeals. . . . The
General Assembly is cognizant that there are many issues regarding evidence that are not covered by the Federal Rules of Evidence and in those situations the former provisions of Title 24 have been retained. Unless displaced by the particular provisions of this Act, the General Assembly intends that the substantive law of evidence in Georgia as it existed on
December 31, 2012 be retained.” [emphasis added]
Consistent with the foregoing, the Pattern Jury Instructions Committee has reviewed all old charges on evidence and made changes keeping in mind the new rules and added other refinements we felt were needed. Some old charges were retained even where underlying statutes have been repealed or replaced. In most such instances, it was felt the old charge could do no harm. The committee has also taken some charges from the I 1th
Circuit Pattern Jury Instructions we felt were clearer and complied with Georgia Law.
00.005 Preliminary General Instructions (Civil): Before Introduction of Evidence (Note: Preliminary instructions are optional and are included in this charge book for use by those judges who feel they would be helpful to jurors. Many judges use some form of preliminary instructions because they feel it assists jurors in understanding their responsibility and the order of trial proceedings. Care should be taken to ensure that all parties are present during these and all jury
instructions unless the record shows a waiver. This practice has been approved by the
appellate courts in Bradham v. State, 148 Ga. App. 89[6] [1978], even in the absence of the defendant, Oliver v. State, 168 Ga. App. 477[4] at 478 [1983].)
00.010 Generally
Members of the jury, the case you are about to try is styled . Under our legal
system, it is my duty as the trial judge to determine the law applicable to this case, and it is your duty, as the jury, to determine the facts of the case. It is also your duty to apply the law
to those facts in reaching your verdict.
00.020 Evidence
You determine the facts from the evidence, which consists of two things: testimony and exhibits. Testimony is the statements that you will hear made under oath from the witness(es). Exhibits are documents, photos, or other items that will be admitted into evidence. You will then have those exhibits with you in the jury room for use during your deliberations.
I caution you that what the lawyers say during this trial is not evidence. Nothing they say in their opening statements or their arguments or at any other time during this trial is evidence. Nor is anything I might do or say evidence in this case.
I have no leanings in this case whatsoever. My interest in this case is to see that it is tried fairly for both parties and to see that it is tried according to the laws of the State of
Georgia and according to the constitutions of this state and of the United States.
00.030 Parties (Optional) You must consider this case as a lawsuit between persons of equal worth and equal standing in the community and between persons holding the same or similar positions in life. All persons stand equal before the law, and all persons are to be dealt with as equals in a court of justice.
(Use the following when either the plaintiff or the defendant is a corporation.)
A business entity such as a corporation, like , is regarded as a person
in this instance.
O.C.G.A. 1-3-3(14)
2 Updated July 2014 Preliminary General Instructions
00.040 Burden of Proof In a civil case such as this, the plaintiff has the burden of proving his/her case. The plaintiff must prove this case by what is known as a “preponderance of the evidence.”
The term “preponderance” means “greater weight,” and as it is used here, “preponderance of the evidence” means “the greater weight of evidence upon the issues involved.” The weight of evidence need not be enough to completely free the mind from a reasonable doubt. However, to be a preponderance, the weight of the evidence must be sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.
(Give the following portion of this charge if an affirmative defense is asserted:
The defendant has filed what is/are known as [an] affirmative defense[s] to the
claim[s] of the plaintiff, specifically [state the affirmative defense(s) asserted]. As to
that/those defense[s], the defendant bears the burden of proof by a preponderance of the evidence.) If you find that the evidence is evenly balanced on any issue in the case, it would then be your duty to resolve that issue against the party having the burden of proving that issue. (Note: The preceding paragraph has been disapproved by Dyer v. Souther, 274 Ga. 61 [2001].)
00.050 Credibility of Witnesses The jury must determine the credibility, or believability, of the witnesses. Therefore, you must determine which witness or witnesses you will believe and which you will not believe, if there are any whom you do not believe.
In determining where the preponderance of the evidence lies and the credibility of
witnesses, you may consider all of the facts and circumstances of the case. You may consider
1) the witnesses’ manner of testifying,
2) their intelligence,
3) their means and opportunity for knowing the facts about which they testify, 4) the nature of the facts about which they testify,
5) the probability or improbability of their testimony,
Preliminary General Instructions Updated July 2014
6) their interest or lack of interest in the outcome of the case, and
7) their personal credibility as it appears from the trial.
It is your duty to determine what testimony is worthy of belief and what testimony is not worthy of belief. You may believe or disbelieve all or any part of the testimony of any witness.
You may also consider the number of witnesses, but the preponderance of evidence
does not necessarily lie with the party who has the greater number of witnesses.
O.C.G.A. §§24-14-4, 24-6-620
00.070 Rules of Evidence
The object of all legal investigation is the discovery of truth, and rules of evidence are designed with that one prominent purpose in mind. During the course of this trial there may be objections made by the lawyers and rulings made by the court. These objections and rulings will involve the technical rules of evidence, and you should draw no inferences and make no assumptions from either the lawyer’s objections or the court’s rulings. Evidence
that is not admitted because of an objection or other reason shall not be considered by you.
00.080 Trial Procedure The procedure used in a civil trial is generally as follows:
First, the attorney for each side has the opportunity to address you in what is called an opening statement. This opening statement itself is not evidence. Remember that what the lawyers say is not evidence but rather is a preview or outline of what they expect the evidence to be. Since the plaintiff has the burden of proof, the plaintiff goes first.
Following the opening statements, the plaintiff presents evidence; that is, the plaintiff calls witnesses and introduces any exhibits. The defendant has the right to cross-examine these witnesses. When the plaintiff has presented all of his/her evidence, the plaintiff will rest his/her case.
The defendant then has the opportunity to present his/her case, which means that the defendant then calls witnesses and introduces exhibits. The plaintiff has the right to cross-
examine the defendant’s witnesses.
4 Updated July 2014 Preliminary General Instructions
After all of the evidence has been presented, the attorneys have the opportunity to make what is called a closing argument or a summation. At that time, the attorneys will attempt to point out to you certain parts of the evidence that they think are favorable to their position and try to persuade you to decide the case in their favor. Both sides have the opportunity to make this closing argument.
Following the closing arguments, I will charge you more specifically on the law directly applicable to this case. I will then ask you to retire to the jury room to deliberate and reach your verdict.
Please remember during the course of this trial to listen carefully to all of the evidence. Do not jump to conclusions before all of the evidence is presented. Also, please remember that during the course of this trial, it would be improper for you to discuss this case with anyone or to allow anyone to discuss the case with you or in your presence or hearing. You cannot discuss the case with each other in the jury room or elsewhere before
actual deliberations begin, and then only in the presence of all twelve of you.
00.090 Note Taking by Jurors
Regarding juror note taking: I have asked the bailiff to provide you with pencils and note pads for your use during trial. You may take notes, but you are not required to do so. If you decide to take notes, please remember that note taking should not divert you from paying full attention to the evidence and evaluating witness credibility. Your observations of the witnesses during their testimony can be vital to your determination of the believability of their testimony. The notes that you take are for your use only and are not to be shared with anyone until you begin deliberation with your fellow jurors. Notes are not evidence, only memory aids, and should not take precedence over your recollection. It is the duty of each juror to recall the evidence, and while you may consider another juror’s notes to refresh your memory, you should rely on your own recollection of the proceedings. Do not be influenced by the notes of other jurors, unless their notes help you in determining your own independent recollection. Notes are not entitled to any greater weight than the recollection or impression of each juror as to what the evidence may have been. After the trial is over, the
notes will be collected and destroyed.
Preliminary General Instructions Updated July 2014
United States v. Rhodes, 631 F.2d 43 (5th Cir.) (1980) United States v. D. R. McLean, 578 F.2d 64 (3rd Cir.) (1978) Potts v. State, 259 Ga. 96 (1989)
00.100 Concluding Remarks I instruct you, ladies and gentlemen, that you must decide this case for yourself solely on the testimony you hear from the witness stand and the exhibits admitted into evidence. You may not visit any scenes depicted by the evidence. You may not utilize any books or documents not in evidence during your deliberations. You may not read or listen to any accounts of the trial that might appear in the news media. You may not discuss this case with anyone, including your fellow jurors, until the court authorizes you to do so.
That concludes my preliminary instructions, and we are now ready for the lawyers to
give their opening statements.
6 Updated July 2014 Preliminary General Instructions
00.110 Juror Use of Electronic Technology to Conduct Research on or Communicate about a Case (Before Trial: )
To preserve the integrity of the jury system, you as finders of facts must decide this case solely upon evidence presented in this courtroom. This means that during the trial, you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials; search the Internet, websites, or blogs; or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom— to include media of any sort or online legal research. Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the Internet, and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter; through any blog or website; through any Internet chat room; or by way of any other social
networking websites, including Facebook, My Space, LinkedIn, and YouTube.
(At the Close of the Case:)
During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry, or computer; the Internet, any Internet service, or any text or instant messaging service; or any Internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube, or Twitter to communicate to anyone any information about this case or to conduct any research about
this case until I accept your verdict.
Preliminary General Instructions Updated July 2014
02.000 GENERAL INSTRUCTIONS
02.010 Pleadings
You have been considering the case of (name of plaintiff), as Plaintiff, v. (name of defendant), as Defendant, Civil Action No. . (Name of plaintiff) filed this action here in the Superior Court of County, in which he/she contends (briefly narrate
contentions or read contentions from the pretrial order or, if pleadings are sent out with
jury, you may state that contentions are set forth in petition). (Name of defendant) filed an
answer to the petition in which he/she (handle in same manner as plaintiff s contentions).
(If pleadings are amended, add the following.) (Name of defendant or plaintiff) later amended or added to the pleading to
contend . Under our law, (name of plaintiff or defendant) is not required
to answer these contentions and by operation of law, they are automatically denied. O.C.G.A. §9-11-15
I have outlined briefly the written contentions of the parties as set forth in the pleadings. The pleadings are not evidence; they are only claims or contentions of the parties.
(Use the following if applicable.)
You will have the pleadings with you when you go to the jury room to consider this case, and you may read them if you wish for a more specific account of the contentions of
the parties.
02.020 Burden of Proof; Generally; Preponderance of Evidence, Defined
The plaintiff has the burden of proof, which means that the plaintiff must prove whatever it takes to make his/her case, except for any admissions (in pleadings) by the defendant. The plaintiff must prove his/her case by what is known as a preponderance of the evidence; that is, evidence upon the issues involved, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of
the issue rather than to the other.
O.C.G.A. §§24-14-1, 24-14-3, 24-8-821, 9-11-36(b) Superior Paving Inc. et al. v. Citadel Cement Corporation, 145 Ga. App. 6 (1978) Danforth v. Danforth, 156 Ga. App. 236, 239 (1980)
02.030 Burden of Proof; Counterclaims
The defendant has filed what is known as a counterclaim; that is, the defendant claims that
the plaintiff owes him/her for (state nature and amount of defendant’s claim) instead of the
defendant owing the plaintiff.
A counterclaim is covered by the same rules of law that govern the plaintiff s claim. The defendant must prove his/her case by a preponderance of the evidence as it has just been explained. If neither party proves his/her case by a preponderance of the evidence, your
verdict would be in favor of the defendant but without any monetary recovery.
Gunn v. Harris, 88 Ga. 439 (1891)
Georgia, Florida & Alabama Railway Co. v. Summer, 133 Ga. 134 (1909) (and other decisions to note “charge” following O.C.G.A. §§24-14-1, 24-14-2)
Whitley Construction Co. v. O’ Dell, 94 Ga. App. 426 (1956)
Cale v. Jones, 176 Ga. App. 865 (1985)
Gilbert v. Powell, 165 Ga. App. 504 (1983)
(Note: In equity cases involving such issues as specific performance, accident and mistake, reformation, and others, a different and higher burden of proof is required. The
language will have to be adjusted for each case, but the following charge may be helpful.)
02.040 Clear and Convincing Evidence
As to the issue of , the (plaintiff) (defendant) must prove to a reasonable
certainty by clear, convincing, and decisive evidence that the (plaintiff) (defendant) is entitled to relief. This is a different and higher burden of proof than a mere preponderance of
the evidence.
Yablon v. Metropolitan Life Ins. Co., 200 Ga. 693 (1946) Wall et al. v. Wood, 174 Ga. 508 (1931)
2 Updated January 2020 General Instructions
Liberty National Bank and Trust Co. et al. v. Diamond, 229 Ga. 677 (1972) Freeman v. Saxton, 243 Ga. 571 (1979)
(Note: For a criminal trial, the burden of proof requirement is “beyond a reasonable doubt.’’)
Clear and convincing evidence is defined as evidence that will cause the jury to firmly believe each essential element of the claim to a high degree of probability. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence (but
less than beyond a reasonable doubt). (Give definition of reasonable doubt if appropriate.)
Clarke v. Cotton, 263 Ga. 861 (1994) (The special concurrence to this decision contains
a variety of definitions of clear and convincing evidence.)
02.100 Evidence, Generally Evidence is the means by which any fact that is put in question is established or disproved.
Evidence includes all of the testimony of the witnesses as well as the exhibits admitted during the trial. (It also includes any stipulations, which are facts agreed to by the attorneys.)
Evidence may be either direct or circumstantial or both.
In considering the evidence, you may use reasoning and common sense to make deductions and reach conclusions. “Direct evidence” is the testimony of a person who asserts that he or she has actual knowledge of a fact (such as an eyewitness) (such as by personally observing or otherwise witnessing that fact). “Circumstantial evidence” is proof of [a chain or set of] facts and/or circumstances that tend to prove or disprove another fact by inference (that is, by consistency with such fact or elimination of other facts). There is no legal difference in the weight you may give to either direct or circumstantial evidence.
(Adapted from 11th Circuit PJI, p. 21)
02.110 Evidence, Direct or Circumstantial (Use if appropriate.)
Direct evidence is evidence that immediately points to the question at issue.
General Instructions Updated January 2020
Circumstantial (or indirect) evidence is evidence that only tends to establish a fact; it must be such as to reasonably establish that fact rather than anything else. The comparative weight of circumstantial and direct evidence on any given issue is a question of fact for you
to decide.
Scott v. State, 57 Ga. App. 489 (1938) O.C.G.A. §24-14-6
(The following are alternative charges as to evidence.)
Direct evidence is the testimony of a witness who has seen or heard the facts to which the witness testifies and that, if believed, is sufficient to prove or establish these facts.
Circumstantial evidence is the testimony of a witness who has seen or heard the facts to which the witness testifies, from which such facts, if believed, you may find other facts to exist, that are reasonable and believable to you in the light of your experience.
When circumstantial evidence is relied upon to establish a fact or theory, it must be
such as to reasonably establish that fact or theory rather than anything else.
Scott v. State, 57 Ga. App. 489 (1938) Southern Railway Co. v. Georgia Kraft Co., 258 Ga. 232 (1988)
02.112 Stipulations The parties have entered into a stipulation that has been approved by the court about the
following (facts) (testimony, documents, exhibits):
(specify )
Where parties stipulate facts with the approval of the court, this is in the nature of evidence.
You must take that fact or those facts as a given without the necessity of further proof.
02.114 Judicial Notice
(Spoliation, see Hillman v. Aldi, Inc., 349 Ga. App. 432 (2019))
I have taken judicial notice of certain facts or events. When the Court declares that it has taken judicial notice of some fact or event, you must accept the Court’s declaration as
conclusive evidence and regard as proved the fact or event that has been judicially noticed.
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O.C.G.A. §24-2-201(g)(1)
02.116 Limiting Instructions
Sometimes evidence is admitted (for a limited purpose) or (against some parties and not others). Such evidence may be considered by the jury for the sole issue or purpose (against that/those party(ies)) for which the evidence is limited and not for any other purpose.
(Note: “[A]lthough a trial judge is not required in the absence of a request to give a limiting instruction when . . . evidence [or related acts] is admitted, it would be better for the trial judge to do so.” State v. Belt, 269 Ga. 763 (1998). The charge should be given prior to the admission of such evidence and repeated in the final charge. Chisholm v. State, 231 Ga. App. 835 (1998).)
Note: NEW code section requires the judge to give limiting instructions, when applicable, ON REQUEST. Probably better to give, if applicable, whether requested or not.
O.C.G.A. §24-1-105 EXAMPLES OF WHEN GIVEN: Similar Transactions; Convictions or “Bad Acts” to attack
credibility; felony for possession of firearm offense.
02.118 Limiting Instructions/ Conditional Admissibility Sometimes evidence is admitted conditionally; that is, although you have been permitted to hear the evidence, it is only admitted and you may only consider it if you also find certain required but disputed predicate facts which allow you to consider such evidence.
If you do not find the conditions necessary in order to allow you to consider the evidence, then you must disregard it completely even though you have heard the evidence.
O.C.G.A. §24-1-104(b)
02.120 Expert Witnesses
(Use only if applicable.)
Testimony has been given in this case by certain witnesses who are termed experts. Expert witnesses are those who because of their training and experience possess knowledge in a particular field that is not common knowledge or known to the average citizen. The law
permits expert witnesses to give their opinions based upon that training and experience.
General Instructions Updated January 2020
You are not required to accept the testimony of any witnesses, expert or otherwise. Testimony of an expert, like that of all witnesses, is to be given only such weight and credit
as you think it is properly entitled to receive.
O.C.G.A. §§24-7-702—24-7-705 McCoy v. State, 237 Ga. 118 (1976) Columbia County v. Doolittle, 270 Ga. 490 (1999)
OR substitute 11th Cir. PJI, p. 33, as follows:
When scientific, technical, or other specialized knowledge might be helpful, a person who has special training or experience in that field is allowed to state an opinion about the matter. But that does not mean you must accept the witness’s opinion. As with any other witness’s testimony, you must decide for yourself whether to rely upon the opinion.
O.C.G.A. §§24-7-702—24-7-705
02.121 Expert Witness; Fair Market Value; Comparable Sales (See 14.210 et seq., Condemnation; Fair Market Value.)
02.130 Credibility of Witnesses *Note: The committee removed “Intelligence” as a credibility factor from the criminal charge on credibility of witnesses based on McKenzie v. State, 293 Ga. App. 350 (2) (2008); however, the Federal Rules re-codify it. O.C.G.A. §24-14-4. Query: What if the defense brings in a world-renowned DNA expert who is a certified genius to testify versus a seeming bureaucratic “expert for the state,” and the defense requests the charge including intelligence? The cases prohibiting the use of “intelligence” in charge are a seeming egalitarian knee-jerk against correlating intelligence and honesty. But credibility also may depend on competency. The charge is neutrally drawn and can be adequately argued by either side.
The jury must determine the credibility of the witnesses. In deciding this, you may consider all of the facts and circumstances of the case, including the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts about which
they testify, the nature of the facts about which they testify, the probability or improbability
6 Updated January 2020 General Instructions
of their testimony, their interest or lack of interest in the outcome of the case, and their
personal credibility as you observe it.
See O.C.G.A. §§24-14-4, 24-6-620
02.150 Witness, Attacked (Old Impeached)
In determining the credibility of witnesses and any testimony by them in court, you may consider, where applicable, evidence offered to [(attack) (cast doubt upon) (challenge) the credibility or believability of] [cause you to disbelieve] any such witness. This would include evidence of:
(Charge only those that apply)
e Character for untruthfulness. Shown by (opinion of other witnesses), (reputation) (O.C.G.A. §24-6-608 (a)); or “Bad Acts” (cross-examination only )—Specific instances of conduct of the witness (in question), brought out on cross-examination of (that) (another) witness that may relate to (that) witness’s (in question’s) character for untruthfulness. O.C.G.A. §24-6-608(b)(1) and (2)
e Bias toward a party. Shown by “Bad Acts” (extrinsic evidence or cross- examination)—Specific instances of conduct of the witness (in question) that may
relate to the witness’s (in question’s) bias toward a party. O.C.G.A. §24-6-608(b)
Felony conviction—Proof that the (witness) (defendant) has been convicted of the offense of . [Admit and charge only those offenses punishable by one year or more of imprisonment and only where the judge finds “the probative value of admitting the evidence conviction outweighs prejudicial effect.” O.C.G.A. §§24-6-609(a)(1), 24-4-403; Quiroz v. State, 291 App. 423 (2008)]
Crime of Dishonesty conviction—Proof that the witness has been convicted of a crime involving (dishonesty) or (making a false statement). O.C.G.A. §24-6-609(a)(2) [Note: Does not include misdemeanor theft. Adams v. State, 284 Ga. App. 534 (2007). ]
Admissibility considerations—( Considerations below are not hard and fast, and individual
facts and circumstances MAY dictate a different result than that directed by this QUICK
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guide. In BALANCING, judge should make EXPRESS FINDINGS. Quiroz v. State, 291 Ga. App. 423. Subject to balancing probative value versus prejudicial effect, WHICH TRUMPS ALL OTHER CONSIDERATIONS BELOW (0.C.G.A. §24-4-403 for ALL evidence and specifically for FELONY convictions [see Clay v. State, 290 Ga. 822 for FIVE BALANCING FACTORS] and “Bad Acts” O.C.G.A. §§24-9-608(b), 24-9-609 (a)(1).)
Admissible—Convictions less than 10 years from conviction or actual release from confinement (O.C.G.A. §24-6-609(a)(1) and (2)). Note: Allen v. State, 286 Ga. 392(2). Calculating 10 years—probation does NOT equal “confinement”—and end date is date of
testimony or date conviction offered. Clay v. State, 290, Ga. 822.
SOME juvenile “convictions” (O.C.G.A. §24-6-609(d))
Cases on appeal, but the pendency of appeal is also admissible (O.C.G.A. §24-6-609(e))
Inadmissible—Time Barred—Over 10 years old from date of conviction or release from ACTUAL confinement, not probation (Allen v. State, 286 Ga. 392(2)). Calculating 10 years—probation does NOT equal “confinement”—to time of testifying, not time of offense, unless JUDGE BALANCES AND FINDS INTERESTS OF JUSTICE permit longer. Clay v. State, 290 Ga. 822 BALANCING FACTORS.
First offender and conditional discharge unadjudicated and pardoned offenses
inadmissible (O.C.G.A. §§24-6-609(c), 24-6-622)
Convictions based on pleas of nolo contendere and juvenile “convictions” of defendant
inadmissible (O.C.G.A. §24-6-609(d))
02.154 Witness, Supported (Evidence and charge authorized only where a witness has been attacked.) In determining the credibility of any witness whose credibility has been (attacked) (cast
doubt upon) (challenged) as I have described above and any testimony by him or her in
8 Updated January 2020 General Instructions
court, you may consider, where applicable, evidence offered to support the credibility or believability of any such witness. This would include: (Charge only those that apply.)
e Character for truthfulness. Shown by (opinion of other witnesses) or (reputation) (O.C.G.A. §24-6-608(a)); or “Truthful conduct” (cross-examination only). Specific instances of conduct of the witness (in question), brought out on cross-examination of (that) (another) witness, that may relate to (that) witness’s (in question’s) character for truthfulness; O.C.G.A. §24-6-608(b)(1) and (2)
e Lack of bias toward a party. “Truthful conduct” (extrinsic evidence or cross- examination). Specific instances of conduct of the witness (only after the witness has been attacked) that may relate to the witness’s (in question’s) lack of bias
toward a party. O.C.G.A. §24-6-608(b)
02.156 Witness, Impeached, Credibility Attacked
(Only “IMPEACHMENT” statute retained)
To impeach a witness is to show that the witness is unworthy of belief. A witness may be impeached by disproving the facts to which the witness testified (O.C.G.A. § 24-6-621); OR
The credibility of a witness may be attacked by disproving the facts to which the witness
testified.
02.158 Prior Statements
Your assessment of a trial witness's credibility may be affected by comparing or contrasting that testimony to statements or testimony of that same witness before the trial started. It is for you to decide whether there is a reasonable explanation for any inconsistency in a witness's pre-trial statements and testimony when compared to the same witness's trial testimony. As with all issues of witness credibility, you the jury must apply your common sense and reason to decide what testimony you believe or do not believe.
O.C.G.A. §24-6-613
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02.160 Failure to Produce Evidence
When a party has evidence that rejects (or disproves) a claim or charge made against the party and he/she fails to produce it, or having more certain and satisfactory evidence, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded. This presumption may be rebutted, however.
O.C.G.A. §24-14-22
02.161 Failure to Produce Witnesses; Generally If a party fails to produce an available witness, the jury shall determine whether such a failure warrants the inference that the witness, if produced, would have testified to facts
prejudicial to the party failing to produce the witness.
O.C.G.A. §24-14-22
Cotton v. Childs, 179 Ga. 23 (1934)
Southern R.R. Co. et al. v. Acree, 9 Ga. App. 104(2) (1911) Oliver v. Fair Jewelers, 104 Ga. App. 392 (1961)
02.162 Failure to Produce Witnesses; Mutual Accessibility Charge removed pursuant to O.C.G.A. §24-1-104(a). Give appropriate charge above.
02.163 Failure to Produce Witnesses; Control by Party Charge removed pursuant to O.C.G.A. §24-1-104(a). Give appropriate charge above.
02.170 Admissions
Deleted due to changes in 2.020.
02.171 Acquiescence or Silence
Former O.C.G.A. §§24-3-15, 24-3-36, 24-3-53 have been repealed.
See O.C.G.A. §24-14-23 dealing with letter in course of business. Also possible conduct as an admission O.C.G.A. §24-8-801(a)(2).
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02.500 Verdict; Form of
(Note: The following verdict form will suffice in most cases. Cases involving multiple parties and special issues may require different verdict forms. These verdict forms and any stipulations should be discussed with attorneys at pretrial.)
If you believe from (a preponderance of the evidence) (clear and convincing evidence) that the plaintiff is entitled to recover damages, you would find for the plaintiff and the form of your verdict would be, “We, the jury, find for the plaintiff in the sum of (blank) dollars.” (Where I have used the word “blank,” you would insert such sum in dollars and cents as you think the plaintiff is entitled to recover.)
If you do not think the plaintiff is entitled to recover damages based upon the evidence presented, you should find for the defendant, and the form of your verdict would
be, “We, the jury, find for the defendant.”
02.510 Verdict; Quotient (Give the following only if requested.)
If you find for the plaintiff, then you must determine an amount to be awarded to the plaintiff. The law requires that your verdict be unanimous; that is, agreed to by all jury members after the amount is determined.
It is unlawful for you to agree in advance to be bound by the figure that is calculated by each of you writing down your own figure and then adding them together and dividing the sum by twelve. If you wish to use this method to arrive at an amount for discussion without binding yourself in advance to accept the result, you may do so. You are not prohibited from accepting that result and adopting it as your verdict after the amount is determined if you believe from a preponderance of the evidence that the figure arrived at by this method represents just and adequate damages. However, you must have first found in favor of the plaintiff, and you must all agree after the amount has been determined that the
amount represents your verdict.
Department of Transportation v. Mendel, 237 Ga. App. 900 (1999) Cromer & Thornton v. Underwood, 64 Ga. App. 519(3) (13 S.E. 2d 860) (1941)
General Instructions Updated January 2020 11
02.520 Verdict in Writing
Whatever your verdict in the case, it must be agreed to by each juror; it must be in writing, dated, and signed by your foreperson; and it must be returned and read aloud in court. You may write your verdict on the back of the plaintiff s petition.
(Optional alternative instruction: The court has prepared a verdict form for your use. [Then explain the form to the jury. ])
(Note: The manner of returning a verdict herein set out is not required by law but is set by usage and custom [Sullivan v. State, 29 Ga. App. 377, 379 (1922) ], except that it must be published in open court [O.C.G.A. $9-12-3]. A verdict does not have to be in writing or signed [Knight v. Knight, 209 Ga. 131 (1952) and Sullivan v. State, 29 Ga. App. 377 (1922), cited by note “verdict.” ].)
02.530 Court Has No Interest in Case I want to emphasize that anything the court did or said during the trial of this case was not intended to and did not intimate, hint, or suggest to you which of the parties should prevail in this case. Whichever of the parties is entitled to a verdict is a matter entirely for you to determine, and whatever your verdict, it must be agreed upon by all of you.
The court’s interest in the matter is that the case be fairly presented according to law and that you—as honest, conscientious, impartial jurors—consider the case as the court has
instructed you and return a verdict that speaks the truth as you find the truth of the case to be.
O.C.G.A. §9-10-7 Kimberly v. Reed, 79 Ga. App. 137, 146 (1949); cited to note “saving language” thereunder (There is no legal requirement for this charge, but it is a sound,
precautionary measure.)
02.540 Condemnation
(Note: For condemnation cases, see 14.000 et seq., Condemnation.)
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02.550 Sympathy
Your verdict should be a true verdict based upon your opinion of the evidence according to the laws given you in this charge. You are not to show favor or sympathy to one party or the other. It is your duty to consider the facts objectively without favor, affection, or sympathy
to either party. O.C.G.A. §15-12-138
In deciding this case, you should not be influenced by sympathy or prejudice (because of race, creed, color, religion, national origin, sexual preference, local or remote
residence, economic (or corporate) status) for or against either party.
O.C.G.A. §15-12-138
02.560 Alternate Jurors
(Give appropriate instructions.)
02.570 Jury; Final Instructions
Your verdict must be unanimous. One of your first duties in the jury room will be to select one of your number to act as foreperson, who will preside over your deliberations and who will sign the verdict to which all twelve of you freely and voluntarily agree.
You should start your deliberations with an open mind. You should carefully consider all of the evidence in the case and deliberate with an aim toward reaching a unanimous verdict consistent with your consciences and oaths as jurors. Avoid premature, fixed opinions. Consult with one another and consider each other’s views. Each of you must decide this case for yourself, but you should do so only after discussion and consideration of the case with your fellow jurors. Do not hesitate to change an opinion if convinced that it is wrong. However, you should never surrender honest convictions or opinions in order to be congenial or to reach a verdict solely because of the opinions of the other jurors.
You may go now to the jury room, but do not begin your deliberations until I send you the pleadings, exhibits, and verdict form, which I will do shortly. Then you may begin
your deliberations.
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02.700 Verdict (Hung Jury)
Your verdict must be unanimous. You have been deliberating this case for a considerable length of time, and the court deems it proper to advise you further in regard to the desirability of agreement if possible.
The case has been exhaustively and carefully tried by both sides. It has been submitted to you for decision and verdict, if possible, rather than for disagreement. It is the law that a unanimous verdict is required. While this verdict must be the conclusion of each juror and not a mere acquiescence in order to reach an agreement, it is still necessary for all the jurors to examine the issues and questions submitted with candor and fairness and with a proper regard for, and deference to, the opinion of the others.
Each juror should listen to the arguments of other jurors with a disposition to be convinced by them. If you differ in your views of the evidence, such difference of opinion should cause you to scrutinize the evidence more closely and to reexamine the grounds of your opinions.
Your duty is to decide the issues of fact that have been submitted to you, if you can do so conscientiously. In conferring, you should lay aside all mere pride of opinion and should bear in mind that the jury room is no place to champion either side of a cause. As jurors, you should not be advocates. The aim to keep in mind is the truth as it appears from the evidence, examined in light of the court’s instructions.
You will again retire to your jury room for a reasonable time and examine your
differences in a spirit of fairness and try to arrive at a verdict.
Spaulding v. State, 232 Ga. 411 (1974) Ratcliff v. Ratcliff, 219 Ga. 545 (1964) Allen v. United States, 164 U.S. 492 (17 S.C. 154, 41 L. Ed. 528) (1896)
14 Updated January 2020 General Instructions
04.000 ACCORD AND SATISFACTION
04.010 Accord and Satisfaction; Definitions; Examples When a new agreement takes the place of an old one, this ends the old agreement. The legal words for such an end to an old agreement are “accord and satisfaction,” which occurs when
(use one or more of the following, depending on the facts of the case)
a) the parties satisfy one agreement by making and carrying out a new one, b) the parties expressly agree that the new one takes the place of the old, or
c) there is a new consideration for a new promise in place of the old one.
(Note: This definition is a simplified restatement of O.C.G.A. $13-4-101.)
04.020 Accord and Satisfaction; Disputed Amount; Settlement
When a party offers a certain sum to settle a claim, the amount of which is in bona fide dispute, with the condition that if the sum is taken at all, it must be accepted in full satisfaction of the claim, the party that takes the money takes it subject to the condition
attached to it, and it will operate as an accord and satisfaction.
Pan-American Life Insurance Co. v. Carter, 57 Ga. App. 294(1) (1938) Gay v. American Oil Co., 115 Ga. App. 18, 21 (1967)
04.030 Accord and Satisfaction; Acceptance of Less than Amount of Debt
An agreement by a creditor to receive less than the amount of a debt cannot be pleaded as an accord and satisfaction unless it is actually executed by the payment of the money, the giving of additional security, the substitution of another debtor, or some other new
consideration.
0.C.G.A. §13-4-103(a) Edwards Bottling Works v. Jarnagan & Wright, 11 Ga. App. 162(1) (1912) Rivers v. Cole Corp., 209 Ga. 406 (1952)
04.040 Accord and Satisfaction; Check Reciting Full Payment (See 04.041—04.042.)
04.041 Accord and Satisfaction; Cashed Check
When the amount of a debt is disputed and the debtor tenders a check for a lesser amount with the statement that it is in full payment of all demands against the maker and the creditor accepts the check, cashes it, and retains the money, there is a valid accord and satisfaction, even if the creditor, at the time of receiving the check, protests to the debtor that it is not
accepted as full payment but only as a credit on the account.
04.042 Accord and Satisfaction; Uncashed Check
When a check is tendered and delivered to a creditor for a stated amount as full and complete satisfaction of a claim and the check is retained by the creditor, whether the amount of the claim is established or uncertain, the following rule of law applies: If the creditor does not cash or deposit the check, it does not amount to an accord and satisfaction of the claim as a matter of law, but it is a question of fact. This rule applies unless the creditor acknowledges receipt and retention of the check for the purpose tendered; in which
case, it does amount to an accord and satisfaction.
Ryan v. Progressive Retailer Publishing Co., 16 Ga. App. 83 (1915) Thompson v. Hecht, 110 Ga. App. 505, 506 (1964) American Oil Co. v. Studstill, 230 Ga. 305 (1973)
2 Accord and Satisfaction
06.000 AGENCY
06.010 Agency; Creation The relationship of principal and agent arises whenever one person—the principal— expressly or implicitly authorizes another—the agent—to act for the principal or later approves the acts of another performed on the principal’s behalf.
(Use the following when either the plaintiff or the defendant is a corporation.)
A business entity such as a corporation, like , is regarded as a
person in this instance. O.C.G.A. §10-6-1
O.C.G.A. 1-3-3(14) National Bank of Athens v. Burt, 98 Ga. 380 (1896)
06.020 Agency; Responsibility of Principal; Extent The principal shall be bound by all acts of an agent that are performed within the scope of the agent’s authority. If the agent exceeds the authority given, the principal may not accept
part of the agreement and reject the balance.
O.C.G.A. §10-6-51
06.030 Agency; Authority of Agent; Extent
The agent’s authority includes all necessary and usual means of performing the agent’s duties. Private instructions or limitations not known to persons dealing with a general agent shall not affect them. In specific agencies for a particular purpose, persons dealing with the
agent should examine this authority.
O.C.G.A. §10-6-50
06.040 Agency; Proof of Before one can be bound by the acts of another who assumes representation of him/her,
proof of agency must be shown.
Agency, as well as authority of an agent, may be established by proof of contract creating agency or by the principal’s conduct and course of dealings.
If one should hold out another as one’s agent and by one’s course of dealings reasonably indicate that such person has certain authority, the one dealing with the agent would be protected to the extent of the authority reasonably deducible from the conduct of the parties.
You must determine the issue of agency in the light of all the facts and circumstances
of the case.
Scott v. Kelly-Springfield Tire Co., 33 Ga. App. 297 (1924) (and other decisions cited to note “proof of agency” following O.C.G.A. §10-6-1)
Patterson v. Southern Railway Co., 41 Ga. App. 94 (1930) (and other decisions cited to note “course of dealing” following O.C.G.A. §10-6-50)
Armour Fertilizer Works v. Abel, 15 Ga. App. 275 (1914)
Terry v. International Cotton Co., 138 Ga. 656 (1912)
King v. Towns, 102 Ga. App. 895 (1960)
06.050 Agency; Ratification of Agent’s Acts; Generally
If the agent exceeds the authority given to him/her, the principal may not ratify (that is,
confirm and approve) in part and reject in part; the principal must accept either all or none. Ratification by the principal shall relate back to the act ratified and shall take effect
as if the act was originally authorized. Ratification may be express or implied from the acts
or silence of the principal. Once made, ratification may not be revoked.
O.C.G.A. §§10-6-51, 10-6-52
06.060 Agency; Ratification; Burden of Proof
The burden of proof of ratification is on the party asserting it.
DeVaughn v. McLeroy, 82 Ga. 687, 688(4)(d) (1889) Griggs v. Dodson, 223 Ga. 164, 171 (1967) Harris v. Millers Farm, 161 Ga. App. 377 (1982) (Harris is a ratification case, but it
does not have anything to do with burden of proof.)
2 Updated July 2014 Agency
06.070 Agency; Ratification; Knowledge of Principal When agency is sought to be proved by ratification, it must appear that the principal had full knowledge of all material facts in connection with the transaction in question and that, with
that knowledge, he/she accepted or received the benefits of the allegedly unauthorized act.
Kephart v. Gulf Refining Co., 59 Ga. App. 432(2) (1939) Griggs v. Dodson, 223 Ga. 164, 171 (1967) (See also citations to note “knowledge” following O.C.G.A. $10-6-52.)
06.080 Agency; Constructive Notice
Notice given to an agent of a fact connected with the agency is notice given to the principal.
O.C.G.A. §10-6-58
Agency Updated July 2014 3
08.000 BAILMENTS
08.010 Bailments; Generally
A bailment is a delivery of goods or property upon a contract, express or implied, to carry out the execution of a special object beneficial to either the bailor or bailee or both and to dispose of the property in conformity with the purpose of the trust. The bailor is the delivering party, and the bailee is the receiving party.
O.C.G.A. §44-12-40
08.020 Bailments; Diligence Required; Generally All bailees are required to exercise care and diligence to protect the bailed item and to keep
it safe. Different degrees of diligence are required according to the nature of the bailments.
O.C.G.A. §44-12-43
08.030 Bailments; Burden of Proof In all cases of bailment, after loss has been proved by the bailor, the burden of proof is on the bailee to show proper diligence. “Loss,” as used in this rule of law, does not only mean
the losing of the bailed item but also refers to damage or injury to the bailor’s property.
O.C.G.A. §44-12-44 Hawkins v. Haynes, 71 Ga. 40 (1883) Electro-Medical Devices Inc. v. Urban Medical Services Inc., 140 Ga. App. 776 (1976)
08.040 Bailor Obligations
The obligations of the bailor are to
1) not act to deprive the hirer of use and enjoyment of the property during the period of the bailment,
2) keep the bailed item in suitable order and repair for the purposes of the bailment, and
3) guarantee the right of possession and that the bailed item is free of any secret fault
rendering it unfit for the purposes for which it is hired.
O.C.G.A. §44-12-63
08.050 Bailments; Definitions (See 08.051—08.053.)
08.051 Bailments; Deposit “Deposit” means the delivery by one person to another of property to keep for the
bailor’s use.
08.052 Bailments; Depositary for Hire “Depositary for hire” means a depositary who receives or expects a reward or hire for
agreeing to keep property for another.
08.053 Bailments; Naked Deposit “Naked deposit” means an undertaking whereby a depositary keeps another’s property free
of charge.
O.C.G.A. §44-12-90
08.060 Depositaries for Hire; Naked Depositaries; Diligence Required of Each (See 08.061—08.0602.)
08.061 Bailees; Voluntary or Involuntary Depositaries; Liability for
Naked Deposit A person may become a depositary voluntarily or involuntarily, such as by finding property belonging to another. In the instance of a naked deposit, the depositary is liable only for gross
negligence.
O.C.G.A. §44-12-91
2 Bailments
08.062 Liability of Depositaries for Hire Depositaries for hire are bound to exercise ordinary care (and are liable as in other cases of
bailment for hire).
O.C.G.A. §44-12-92
08.070 Bailments; Act of God; Definition
In order for a bailee to use an act of God or an exception under the contract as a defense, the bailee must establish not only that the act of God or excepted fact ultimately caused (the statute uses “occasioned’’) the loss but also that the bailee’s own negligence did not
contribute to the loss. O.C.G.A. §44-12-45
“Act of God” means an accident caused by physical forces that are inevitable or beyond control, such as lightning, storms, perils of the sea, earthquakes, floods, sudden
death, or illness. This expression excludes all idea of human agency.
O.C.G.A. §1-3-3(3)
Central of Georgia Railway Co. v. Hall, 124 Ga. 322, 331 (1905)
Charleston and Western Carolina Railway Co. v. Nixon Grocery Co., 142 Ga. 343(1) (1914)
08.080 Bailments; Diligence as Affecting Liability
If a claim is not based upon negligence but rather upon the absolute liability of the defendant, the question of negligence is not involved unless and until the defendant shows that the damage was brought about by an act of God. When such damage is shown, proof of
proper care on the part of the bailee will relieve the bailee from liability.
Georgia Southern & Florida Railway Co. v. Standard Growers Exchange, 34 Ga. App. 534, 535(6) (1925) Central of Georgia Railway Co. v. Hall, 124 Ga. 322 (1905)
Bailments 3
10.000 CARRIERS
10.010 Carriers; Common Carriers; Definitions
A “carrier” is a person who undertakes the transporting of goods or passengers for compensation. A “common carrier” is a person who undertakes to carry, and holds himself/herself out as ready to receive for carriage, goods for hire which the person is
accustomed to carry or passengers for hire without discrimination as long as there is room.
O.C.G.A. §46-1-1(1) 1957 Op. Att y Gen. 110
10.020 Carriers; Distinction as Question of Fact Whether a person is a common carrier or a private carrier depends upon the facts relating to whether 1) the carrier is a public business or employment, with the service to be rendered to all equally; and 2) the carrier has held himself/herself/itself out in such a manner that the carrier should
be held liable for refusing to accept the employment offered.
McIntyre v. Harrison, 172 Ga. 65 (1931) Georgia Public Service Comm. v. Taylor, 172 Ga. 100 (1931)
10.030 Carriers; Diligence Required of Each
Carriers are required to exercise ordinary care. However, common carriers are bound to exercise extraordinary care. In cases of loss, the presumption of law is against them, and they shall be liable unless the loss was caused (occasioned) by an act of God or the public
enemies of the state.
O.C.G.A. §46-9-1
Western & Atlantic Railway Co. v. Waldrip, 18 Ga. App. 263, 264(2) (1916) Empire Aluminum Corp. v. SS Korendijk, 391 F. Supp. 402 (1973) Seaboard Air Line R. Co. v. Henry Chanin Corp., 84 Ga. App. 442 (1951) Sheffield v. Lovering, 51 Ga. App. 353 (1935)
10.040 Common Carriers to Transport and Deliver; Duty of A common carrier shall have the duty of transporting and delivering goods safely and
without unreasonable delay.
O.C.G.A. §46-9-41
10.050 Strike by Carrier’s Employees
A carrier who receives freight for shipment is bound to forward the freight within a reasonable time, even though the carrier’s employees strike or otherwise refuse to work. However, if the strike is accompanied by violence and intimidation so as to render it unsafe to forward the freight, the carrier shall be relieved as to liability for delay in delivering the freight if the violence and armed resistance are of such character as could not be overcome
by the carrier or controlled by the civil authorities when called upon by the carrier.
O.C.G.A. §46-9-42
10.060 Carriers; Acts of God and Public Enemies The carrier has the burden to establish not only that an act of God ultimately caused the loss, but also that the carrier’s own negligence (carelessness) did not contribute to it. The carrier has the burden to establish by clear and convincing evidence that the loss of property delivered to the carrier for transportation was caused by the public enemies of the state.
Public enemy includes acts of violence and armed and organized resistance, whether by military force or strike, or acts otherwise of such character as could not be overcome by the carrier or controlled by the civil authorities when called upon.
(See 02.040 Clear and Convincing Evidence. Clarke v. Cotton, 263 Ga. 861 [1994].)
O.C.G.A. §§46-9-1, 46-9-42
Central of Georgia Railway Co. v. Hall, 124 Ga. 322, 323 (9) (1905)
Payne v. West Point Wholesale Grocery Co., 151 Ga. 46, 52 (1921)
Campbell Wallace v. William Sanders, 50 Ga. 134 (1) (1873)
Haas v. The Kansas City, Fort Scott and Gulf Railroad Co., 81 Ga. 792 (1888)
2 Carriers
10.070 Carriers; Limitation of Liability by Contract A common carrier may not limit his/her/its legal liability by any notice given either by publication or by entry on receipts given or tickets sold, except a) acommon carrier may limit his/her/its liability by means of an express contract or b) amotor common carrier for household goods and office furnishings may require a shipper to declare a lump sum value for the shipment prior to loading or accept the per pound released value as provided in the terms of the bill of lading contract for the
purpose of limiting its liability.
O.C.G.A. §46-9-2; the statute uses “provided” rather than “except”; see O.C.G.A. §11-7- 309, Limitation of Carrier’s Liability by Express Contract, and §13-8-2(b), Unenforceability of Indemnification Contracts Holding Indemnitee Harmless from Liability for Its Own Negligence.
American Railway Express Co. v. Estroff, 159 Ga. 58 (1924)
10.080 Carriers; Passenger; Definition
“Passenger” means a person who travels in a public conveyance by virtue of a contract, either express or implied, with the carrier as to the payment of the fare or that which is accepted as an equivalent to the fare. The prepayment of fare is not necessary to establish the relationship of passenger and carrier, although a carrier may demand prepayment of fare if persons enter the carrier’s vehicle by his/her/its permission with the intention of being carried. In the absence of such a demand, an obligation to pay fare is implied on the part of the passenger, and the reciprocal obligation of carriage of the carrier arises upon the entry of
the passenger.
O.C.G.A. §46-1-1(10) Matthews v. Central of Georgia Railway Co., 46 Ga. App. 699 (1933)
10.090 Carriers; Diligence Required A carrier of passengers must exercise extraordinary care to protect the lives and persons of
his/her/its passengers but is not liable for injuries to them after having used such care.
Carriers 3
O.C.G.A. §46-9-132 Atlanta Transit System Inc. v. Hines, 138 Ga. App. 746 (1976)
10.100 Carriers; When Duty of Carrier Ends When discharging or letting off a passenger, the carrier is under a duty to exercise extraordinary care for the passenger’s safety. This duty continues until the passenger has been taken to a place where the passenger has freedom of movement and can look out for his/her own safety.
Georgia R.R. & Banking Company v. Brooks, 30 Ga. App. 692, 693(3) (1923)
Delta Air Lines Inc. v. Millirons, 87 Ga. App. 334, 342 (1952)
Carriers
12.000 CLAIMS TO BE LEVIED UPON PROPERTY
12.010 Claims; Burden of Proof; Generally When a claim to property is being tried, the burden of proof shall lie upon the plaintiff in execution in all cases in which the property levied on is not in possession of the defendant in
execution at the time of the levy.
O.C.G.A. §9-13-102 Sealy v. Beeland, 183 Ga. 709(1) (1937) Smith v. Hartrampf, 105 Ga. App. 40, 42 (1961)
The burden is upon the claimant when
a) the defendant in fi fa is in possession of the property levied upon, b) the claimant admits title in the defendant prior to the judgment, or c) there is evidence that the defendant was in possession prior to the judgment on which
the execution is based.
Parker v. Boyd, 208 Ga. 829 (1952) Sealy v. Beeland, 183 Ga. 709 (1937) M. J. Morgan v. Sims & Nance, 26 Ga. 283 (1858)
12.020 Claims; Fraud; Generally If the plaintiff attacks the claimant’s title for fraud, the plaintiff has the burden of proving
such fraud.
Johnson v. Sherrer, 185 Ga. 340(2) (1938)
12.030 Claims; Fraud; Husband and Wife; Generally When a transaction between a husband and wife is attacked as being fraudulent by a creditor of either, the burden is on the husband and wife to show that the transaction was fair and not
designed to hinder, delay, or defraud creditors.
O.C.G.A. §19-3-10 Parker v. Harling, 189 Ga. 224 (1939)
Cotton v. John W. Eshelman and Sons Inc., 137 Ga. App. 360 (1976) Swanson v. Universal Promotions Inc., 144 Ga. App. 591 (1978)
12.040 Claims; Spouse, Secret Equity of
At times a situation may exist in which one spouse holds equitable title to land and the other holds legal title to the same land. If such a situation exists, and if the spouse holding equitable title permits the spouse holding legal title to use the property to obtain credit, such spouse would be prohibited from asserting the equitable interest as he/she would against a creditor who has no notice of such interest. This situation holds true even if the interest were
originally created before the rendition of the judgment.
Ford v. Blackshear Mfg. Co., 140 Ga. 670(3) (1913) Mathis v. Blanks, 212 Ga. 226, 227 (1956)
12.050 Claims; Delay, Damages for; Burden of Proof (Give additional oath of jurors regarding reasonable and just damages.)
If you find that the claim was made for purposes of delay only, you shall give reasonable and just damages not less than 10 percent of the amount of the award of damages to the plaintiff against the claimant.
If you find against the claimant but that the claim was not filed for the purpose of delay only, no damages for delay should be awarded.
The burden is on the plaintiff to show by a preponderance of the evidence that the claim was filed for purposes of delay only in order to entitle the plaintiff to recover such
damages.
O.C.G.A. §9-13-101 (additional oath of jurors); §9-13-102 (burden of proof) William W. Clark v. Augustus H. Lee, 51 Ga. 284 (1874) Dobbs Lumber Co. v. Appling, 97 Ga. 375 (1895)
2 Claims to Be Levied upon Property
14.000 CONDEMNATION
14.010 Condemnation; Preliminaries and the Pleadings
We have been trying what is known as a condemnation case between ;
Plaintiff (Condemnor), and , Defendant (Owner or Condemnee).
The lawsuit the plaintiff has filed for this purpose is called the complaint. It says in
substance that plaintiff has taken (title to) (an easement for purpose over) a
described tract of defendant’ s land (and, if applicable, in a highway condemnation), together
with slope and drainage easements.
14.020 Condemnation; Issue
Under the law and under the constitution of this state, plaintiff has the right to take (or damage) private property for a public purpose, provided that it pays just and adequate compensation for the property taken. The only question is, “What constitutes just and adequate compensation for the property taken?” By “property,” I mean all property rights of any kind. Property rights are determined as of the date plaintiff condemned the rights, which
is (the date the condemning authority tenders or pays the money).
Ga. Const. 1983, art. I, sec. III, para. 1 O.C.G.A. §22-1-6 Gate City Terminal Co. v. Thrower, 136 Ga. 456, 464 (1911)
14.030 Condemnation; Burden of Proof
The law puts the burden of proof upon the condemnor to prove by a preponderance of evidence what amount of money constitutes just and adequate compensation for the property taken. While the burden of proof is upon the condemning authority, the owner of the property is also allowed to offer evidence upon the issues involved, and you must determine
the issues in the case by the preponderance of the evidence as you find it to be.
O.C.G.A. §24-14-1 Streyer v. Georgia Southern & Florida Railroad Co., 90 Ga. 56 (1892) Andrus v. State Highway Department, 93 Ga. App. 827, 828 (1956)
State Highway Board of Ga. v. Shierling, 51 Ga. App. 935 (1935)
Georgia Power Co. v. McCrea, 46 Ga. App. 279 (1933)
Georgia Power Co. v. Smith, 94 Ga. App. 166 (1956); cited to note “burden of proof” following O.C.G.A. §22-2-80
14.100 Condemnation Damage; Direct (There are two kinds of damage to be considered in this condemnation.) The first pertains to
the property actually taken or used by the condemnor and is called direct damages.
14.110 Condemnation; Property, Defined
Property that is taken refers to whatever interest in the property is being taken by the condemnor, whether it is the entire ownership of it or the right to use it for a special purpose, which is called an easement, or both, when both types of property are condemned in the
same lawsuit.
14.120 Condemnation Damage; Consequential The second kind of damage is called consequential damages and pertains to the property the
owner has left after the part the condemnor takes or uses is subtracted.
14.130 Condemnation; Direct Damages for Property Taken or Used Concerning direct damages for the property taken or used, the “just and adequate” compensation to which the defendant is entitled under the Georgia Constitution has been defined as the actual value of his/her/its loss. The amount of compensation for these direct damages shall never be less than actual value,
(Do not give the following charge in parentheses unless evidence supports it.)
(that is, the actual value for the direct damages shall never be reduced or offset by any alleged benefits to the remaining property of the defendant.)
Ordinarily, actual value is the same as fair market value.
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Ga. Const. 1983, art. I, sec. III, para. 1 State Highway Dept. v. Robinson, 103 Ga. App. 12 (1961); and cases cited thereto
(Note: If there are no consequential damages, skip to 14.150 Condemnation; Fair
Market Value.)
14.140 Condemnation; Consequential Damages for Property Not Taken Consequential damage to the owner’s property not taken is generally determined by figuring the difference between the value of the remaining property immediately before the taking and its value after the taking for a particular proposed improvement. This measure of consequential damages should be made as of the date of taking. Another way of stating the proper measure of consequential damages to the remainder of the owner’s property is the decrease, if any, in the fair market value of this remainder in its circumstance just prior to the time of the taking compared with its fair market value in its new circumstance just after
the time of the taking.
State Highway Dept. v. Howard, 124 Ga. App. 76 (1971)
Sumner v. State Highway Dept., 110 Ga. App. 646 (1964)
Wright v. MARTA, 248 Ga. 372 (1981)
DOT v. Gunnels, 175 Ga. App. 632 (1985) rev'd on other grounds, 255 Ga. 495 (1986)
14.141 Condemnation; Consequential Damage; Offset for Consequential Benefits; When Applicable (Charge only when there is evidence of consequential benefits.)
In determining the amount of consequential damages, if any, you should consider whether the condemnation will benefit the land the owner has left and, if so, reduce the consequential damage by that amount. The reduced amount is the consequential damage. However, consequential benefits must be disregarded to the extent that they exceed consequential damages; that is, consequential benefits to the remaining property may be shown only as an offset against consequential damages, not as an offset against the value of
land actually taken or used.
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(Note: When there is no evidence of any consequential benefits that accrued to the condemnee’s remaining property, an instruction that consequential benefits can be deducted
from consequential damages is reversible error.)
Ball v. State Highway Dept., 108 Ga. App. 457 (1963) Dept. of Transp. v. Knight, 143 Ga. App. 748 (1977) Merritt v. Dept. of Transp., 147 Ga. App. 316 (1978); Merritt reversed, but on other
grounds—attorney’s fees
14.142 Condemnation; Consequential Damage; Benefits, General and Special as Affecting; Definitions The benefits that can offset against or reduce consequential damage are what the law calls special benefits rather than general benefits. A special benefit would be something that adds to the convenience, accessibility, or usefulness of the property affected by the condemnation. It could benefit the properties of other individuals and still be a special benefit within the meaning of condemnation law. Examples of general benefits that you would not consider would be increased general prosperity, value, beautifying the
neighborhood, or benefits to through traffic.
Williams v. State Highway Dept., 124 Ga. App. 645, 646, & 647 (1971)
14.143 Condemnation; Consequential Damage; Inconvenience
The defendant may not recover damages for mere inconvenience in the use of his/her/its property resulting from a condemnation unless such inconvenience may be shown by the evidence to affect the value of the defendant’s remaining property as an item of
consequential damage.
Southwell v. State Highway Dept., 104 Ga. App. 479 (1961) and citations
14.144 Condemnation; Consequential Damage; Prudent and Proper Construction and Maintenance You are required to assume that the improvements made by the plaintiff will be made and
maintained in a careful and proper manner. Any damage that may result from the plaintiff’ s
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failure to do so may be the basis of a suit for damages by the defendant against the plaintiff
but forms no part of this condemnation proceeding.
McArthur v. State Highway Dept., 85 Ga. App. 500 (1952) and citations DeKalb County v. Cowan, 151 Ga. App. 753 (1979)
14.145 Condemnation; Consequential Damage; Business, Removal of
When a person is required to move his/her/its business as a result of land condemnation, that person is entitled to recover loss of profits; loss, injury to, or decrease of business; and reasonable expenses of moving the business, in addition to damages of any sort pertaining to
land value.
Bowers v. Fulton County, 221 Ga. 731 (1966) D.O.T. v. Gibson, 251 Ga. 66 (1983)
14.146 Condemnation; Consequential Damage; Business, Injury to
The damage to a business by the taking of a part of the land where it is conducted may be considered in determining its effect upon the market value of the business property, but it is not a separate item of damage. The measure of damages for the injury of the business would be the difference in value of the business before and after the taking of the land, or any
interest in it, resulting from such taking.
Williams v. State Highway Dept., 124 Ga. App. 645, 647 (1971) D.O.T. v. Kendricks, 148 Ga. App. 242 (1978)
14.200 Condemnation; Fair Market Value; Defined
The fair market value is the price a seller who desires, but is not required, to sell, and a buyer who desires, but is not required to buy, would agree is a fair price, after due consideration of all elements reasonably affecting value.
Wright v. MARTA, 248 Ga. 372 (1981)
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14.210 Condemnation; Fair Market Value; Opinion Evidence Fair market value is a matter of opinion as to which you are entitled to consider both expert
and nonexpert testimony. O.C.G.A. §24-7-701(b)
(Note: You may want to use 02.120 Expert Witnesses.)
14.220 Condemnation; Fair Market Value; Expert Witness
In this case, you heard the testimony of expert witnesses who gave you their opinion of the value of the subject property taken in these proceedings. In giving this testimony, those expert witnesses referred to the sales of other properties that influenced them in reaching their opinions. Those other sales are not to be considered by you as direct evidence of the value of the subject property but may be considered by the jury to determine the credibility
of the witnesses and the weight to be given to the experts’ testimony.
White v. Georgia Power Co., 237 Ga. 341(5), 345-346 (1976) Merritt v. Department of Transportation, 147 Ga. App. 316, 319 (1978)
14.230 Condemnation; All Uses to Be Considered; Test of Adaptability (This charge should be used only when authorized by the evidence.)
In estimating the value of land when taken for public uses, you are not restricted to the land’s agricultural or productive qualities, to the condition that the land is in, or to the uses to which it is then applied by the owner. All of the capabilities of the property and all of
the uses to which the land may be applied or for which it is adapted are to be considered.
O.C.G.A. §22-2-62 Hard v. Housing Authority of The City of Atlanta, 219 Ga. 74, 80 (1963)
14.240 Condemnation; Fair Market Value Not Necessarily Same as Actual Value (This charge should be used only when authorized by the evidence.) Although fair market value is ordinarily the same as actual value, there may be
circumstances in which it may not be the same, and under those circumstances your measure
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of damage would be actual value. It is up to you to determine whether such circumstances
exist.
State Highway Dept. v. Robinson, 103 Ga. App. 12 (1961) and numerous citations State Highway Dept. v. Whitehurst, 106 Ga. App. 532 (1962)
14.250 Condemnation; Peculiar Value to Owner; Sentimental or Speculative Value Forbidden (This charge should be used only when authorized by the evidence.)
You are entitled to consider the peculiar value of property to the owner under certain conditions, but before you consider the peculiar value of property to the owner, you must find that the relationship of the owner to it is peculiar, that its advantages to the owner are more or less exclusive and would not be likely to apply to another owner.
You are only entitled to consider matters involving money value and not speculative,
sentimental, whimsical, or other value not capable of mathematical calculation.
City of Gainesville v. Chambers, 118 Ga. App. 25, 27 (1968) State Highway Dept. v. Robinson, 103 Ga. App. 12, 14 (1961)
14.260 Condemnation; Change in Value Resulting from Condemnation
In determining the amount of compensation, you may consider any increase (decrease) in the value of the property affected as a result of the general knowledge of the condemnation that was about to take place or the project that was to take place, if you find that there was
such increase (decrease).
Gate City Terminal Co. v. Thrower, 136 Ga. 456 (1911) Hard v. Housing Authority of the City of Atlanta, 219 Ga. 74 (1963) Housing Authority of the City of Decatur v. Schroeder, 222 Ga. 417 (1966)
14.270 Condemnation; Zoning; Effect of In determining the value of property, you are restricted to the uses that may be lawfully made of it at the time of the taking as set out in zoning ordinances then in effect, unless there
is a possibility or a probability that a zoning ordinance will be repealed or amended so as to
Condemnation Updated August 2020 7
authorize a more valuable use in the immediate future sufficient to have an effect on the value. If you find that there is enough likelihood of change for you to consider it, you should not consider the change as an accomplished fact but only the effect that the probability
would have on the value.
Civils v. Fulton County, 108 Ga. App. 793 (1963) D.O.T. v. Sconyers, 151 Ga. App. 824 (1979)
14.280 Condemnation; View of Premises (This charge should be used only when the jury has been allowed to view the condemned property.)
You have been permitted to view the condemned property and the remaining property of the defendant. Please remember that condemnation is fixed as of the date of the taking whether the property looks the same now or not. Your verdict must be based on sworn testimony. You may apply any information gained from viewing the premises to the sworn testimony, but you may not use your own conclusions from viewing the premises in
place of sworn testimony.
State Highway Dept. of Ga. v. Andrus, 212 Ga. 737 (1956) Weeks v. DeKalb County, 140 Ga. App. 15 (1976)
14.300 Condemnation; Limited-Access Road; Definition
A limited-access road is a public highway, road, or street for through traffic and over, from, or to which owners or occupants of adjacent land or other persons have no right to easement or only a limited right or easement of access, light, view, or air by reason of the fact that their property borders on such limited-access highway, road, or street, or for any other
reason.
O.C.G.A. §32-1-3
14.310 Condemnation; Limited-Access Road; Deprivation of Access Rights A limited-access highway is a special kind of highway provided for by law. A person
ordinarily has the right of access to a public road or highway that goes through the person’s
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property; that is, the right to go on or off the highway from or to the property, which is a property right and for which the person is entitled to be paid if a condemnation takes away that right. These rights do not pertain to limited-access highways, and the owner is not entitled to such payments for the lack or absence of access rights.
(The next provision refers to interference with access to an existing road or highway and should be charged only if applicable to the facts.)
If the construction of a limited-access highway interferes with the owner’s access right, the owner’s right of access to an existing road would have to be taken into account,
condemned, and included in the owner’s compensation for land actually taken.
14.400 Condemnation; Leased Property
In determining the damages for the condemnation of land that is being leased, you would need to determine both the amount of damages to the lessor (that is, the owner) and to the lessee (that is, the person it is being leased to). Ordinarily, the total amount of such damage would not exceed the total fair market value of the land. The measure of damages to the lessee (the person it is being leased to) would ordinarily be the market value of the lease to the lessee (the person leasing it), less the amount of rent payable under the lease. The remaining value of the lease to the lessor (owner) would ordinarily be its rental value to him/her/it for the period of the lease, plus the value of the reversion or the value of his/her/its future interest after the lease has ended.
If there are special damages, such as loss of profits and business or expenses for removal of business or other matters that would make the fair market value test inadequate, you would consider these matters in addition to the fair market value of the land in determining what is just and adequate compensation for the lessor and the lessee.
Business losses are recoverable as a separate item of damages only if you believe
from the evidence that the property involved is unique.
MARTA v. Ply-Marts Inc., 144 Ga. App. 482 (1978) D.O.T. v. Dixie Highway Bottle Shop, Inc., 245 Ga. 314 (1980)
Condemnation Updated August 2020 9
Unique property is property of a type not generally bought and sold on the open market. Unique property is property that must be valued by something other than the fair market value standard.
Unique property may be measured by a variety of non—fair market methods of
valuation, including the cost and income methods. Housing Authority of The City of Atlanta v. Southern Railway Co., 245 Ga. 229 (1980)
If the property is unique and the business belongs to the landowner, total destruction of the business or permanent business loss at the location condemned must be proved before
business losses may be recovered as separate damages.
D.O.T. v. Dent, 142 Ga. App. 94 (1977) D.O.T. v. Arnold, 243 Ga. App. 15 (2000)
If one person owns the property and leases it to another who operates a business on the leased property, which is unique, the lessee may recover for business losses as damages separate from the value of the leasehold whether the destruction of the lessee’s business is total or partial, provided the loss is proved with reasonable certainty and is not speculative
or remote.
D.O.T. v. Kendricks, 148 Ga. App. 242 (1978)
State Highway Dept. v. Thomas, 115 Ga. App. 372 (1967)
McGhee v. Floyd County, 95 Ga. App. 221, 223 (1957)
Housing Authority of Savannah v. Savannah Iron & Wire Works, Inc., 91 Ga. App. 881 (1955)
14.500 Verdict; Quotient (See 02.510 Verdict; Quotient.)
14.510 Jury; Final Instructions (See 02.570 Jury; Final Instructions.)
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14.520 Condemnation; Verdict; Generally
The form of your verdict can only be, “We, the jury, find in favor of defendant the sum of (blank) dollars.” You should insert such sum in dollars as you find shall be sufficient as just and adequate compensation. You should add up all damages of every sort that the defendant
is entitled to, and the total sum would be the amount of your verdict.
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11
16.000 CONTRACTS
16.010 Contracts; Definition A contract is an agreement between two or more parties for the doing or not doing of some
specified thing.
O.C.G.A. §13-1-1
16.020 Contracts; Essentials To constitute a lawful contract, there must be parties able to contract, a consideration for the contract, the agreement of the parties to the terms of the contract, and a lawful subject
matter. O.C.G.A. §13-3-1
A consideration is valid if any person who promised is entitled to a benefit or any harm is done to one who receives the promise.
(Considerations are distinguished as good and valuable. A good consideration is founded on natural duty and affection or on a strong moral obligation. A valuable consideration is founded on money or something convertible into money or has a value in
money. Marriage is also a valuable consideration.) O.C.G.A. §§13-3-41, 13-3-42
(See O.C.G.A. §13-3-44, Promissory Estoppel.)
16.030 Contracts; Assent; Generally The consent of the parties is essential to the validity or enforcement of a contract, and until both parties have agreed to all its terms, there is no contract. Until the contract is agreed to, a
party may withdraw an offer or bid or proposition.
O.C.G.A. §13-3-2
16.040 Contracts; Assent; Letters and Replies
If the offer is made by mail, the acceptance by written reply takes effect from the time it is mailed and not from the time it is received; the offeror cannot withdraw in the meantime. If the offer contains different terms, the party receiving the offer has the right to choose which
terms will be accepted, and the sending party will be bound by such choice.
O.C.G.A. §13-3-3
16.050 Contracts; Assent; Sales of Goods (For applicability of this charge, see definition of goods in O.C.G.A. §11-2-105.)
As to sales of goods, unless otherwise clearly indicated by the language or circumstances, an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances. A definite and reasonable expression of acceptance or a written confirmation that is sent within a reasonable time operates as an acceptance, even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional upon assent to the additional or different terms. The additional terms are to be construed as proposals for addition to the contract.
Conduct by both parties that recognizes the existence of a contract is sufficient to establish a contract for sale, but the writings of the parties do not otherwise establish a contract. In such case, the terms of the particular contract consist of those terms to which the writings of the parties agree, together with any supplementary provisions incorporated under
any other terms of the Uniform Commercial Code.
O.C.G.A. §§11-2-206, 11-2-207
16.060 Contracts; Novation
A new contract as to the same matter and with no new consideration does not destroy the original contract between the same parties. However, if new parties are introduced by novation so as to change the person to whom the obligation is due, the original contract is at an end.
A novation has four essential elements:
2 Contracts
1) previous valid obligation, 2) agreement of all parties to new contract, 3) cancellation of old contract, and
4) validity of new contract.
O.C.G.A. §13-4-5 Collier Estate v. Murray, 145 Ga. 851 (1916) Williams v. Rowe, 205 Ga. 770 (1949)
16.100 Contracts; Temporary Departure; Generally
When parties in the performance of a contract depart from its terms and pay or receive money under such departure before either party can recover for failure to carry out the exact terms of the agreement, reasonable notice must be given to the other party of intention to rely on the exact terms of the agreement. The original contract will be suspended by the departure until such notice.
In order for this rule to have application, it is necessary that the circumstances be such as will in law imply a mutual new agreement whereby new, distinct, and definite terms are supplied in lieu of those provided for by the original contract. The departure from the terms of the contract must have been substantial and such as to make it inequitable for the creditor to demand without previous notice all past-due payments or to proceed to collect by suit. Evidence of the buyer’s repeated, late, irregular payments, which were accepted by the person to whom payment was due, is a factor for your consideration in determining whether
anew mutual agreement is to be implied.
O.C.G.A. §13-4-4
Ball v. Foundation Co., 25 Ga. App. 126(1) (1920)
Ford v. Prudential Investment Co., 174 Ga. 163 (1932)
Kennesaw Guano Co. v. Miles & Co., 132 Ga. 763 (1909) MacGuire v. Ivey, 212 Ga. 151, 154 (1956)
Commercial Trust Co. Inc. v. Mathis, 100 Ga. App. 620, 622 (1959)
Contracts 3
Smith v. General Finance Corp., 243 Ga. 500, 501 (1979) Wright Carriage Co. v. The Business Development Corp. of Georgia, 221 Ga. App. 49 (1996)
(See O.C.G.A. $11-2-209 for retraction of waiver or modification of contract terms.)
16.110 Contracts; Temporary Departure; Sales of Goods (For applicability of this charge, see definition of goods in O.C.G.A. §11-2-105.) An agreement modifying a contract for the sale of goods needs no consideration to
be binding.
O.C.G.A. §11-2-20
16.200 Contracts; Good Faith Performance, Duty of
As a general rule, there is implied in every contract for work or services a duty to perform it skillfully and carefully. The law requires persons undertaking to perform services requiring skill the duty to use that reasonable degree of care, skill, and ability that would be used
under similar conditions and circumstances by others of the same business or profession. Howell v. Ayers, 129 Ga. App. 899 (1973)
(See 62.740, Negligent Construction. )
16.210 Contracts; Economic Impossibility of Performance
O.C.G.A. §§13-4-21, 11-2-615
16.220 Contracts; Accident and Mistake (See 16.221—16.510.)
16.221 Contracts; Accident; Definition In some circumstances, a party to a contract may be relieved from the duties and responsibilities of the contract upon the happening of an accident. The accident, to be a
sufficient occurrence, must meet the following three requirements:
4 Contracts
1) It must not be the result of the negligence or misconduct of the party seeking relief;
2) It must not have been anticipated by the parties at the time the contract was entered into; and
3) The result of the accident must be that one of the parties has gained an undue
advantage over the other in a court of law.
O.C.G.A. §23-2-20
16.300 Contracts; Mistake; Definition; Degree of Proof A mistake, in order to be worthy of relief, should be some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence.
Mistake may be either of law or of fact.
The power to relieve mistakes shall be exercised with caution; to justify it, the evidence shall be clear, unequivocal, and decisive as to the mistake.
A relievable mistake must be in reference to a material present or past fact.
O.C.G.A. §23-2-21
Newberry v. McCook, 146 Ga. 679(1) (1917) Cantrell v. Kaylor, 203 Ga. 157, 166 (1947) Callan v. Citizens, etc., 184 Ga. 87(3) (1937) Lewis v. Williford, 235 Ga. 558 (1975) Whipple v. Houston, 214 Ga. 532 (1958)
16.310 Contracts; Mistake of Law An honest mistake of the law as to the effect of an instrument on the part of both contracting parties, when such mistake operates as a great injustice to one and gives an unconscionable advantage to the owner, may be relieved.
A mutual mistake of law is a good defense against an action to recover money under a contract when there is full knowledge of all the facts but the parties have acted under a misapprehension of the law as applied to those facts, provided the mistake is clearly proved and the plaintiff could not in good conscience have received the money sued for. This
principle applies to reformation of documents.
Contracts 5
O.C.G.A. §23-2-22 Holmes v. Holmes, 140 Ga. 217(1) (1913)
(Charge the following only if applicable.) A mistake of law by the person who drafted the contract or other agent by which the contract, as executed, does not fulfill or violates the obvious intention of the parties to the
agreement may (also) be relieved in equity. O.C.G.A. §23-2-23
If the form of a conveyance is, by accident or mistake, contrary to the intention of
the parties in their contract, equity shall interfere to make it conform to that intention.
O.C.G.A. §23-2-25
16.320 Contracts; Mistake of Fact In all cases of a mistake of fact material to the contract or other matter affected by it, if the
party complaining applies within a reasonable time, relief may be granted.
O.C.G.A. §23-2-24
16.330 Contracts; Reformation; Mutual Mistake
A court of equity will reform a contract when there is mutual mistake (that is, a mistake common to both parties) or when there is ignorance or mistake on one side and fraud or inequitable conduct on the other side. These conditions apply to mistakes of both law
and fact.
O.C.G.A. §23-2-31 and annotations under fraud
Hunnicutt v. Archer, 163 Ga. 868(2) (1927)
Jackson v. Brown, 209 Ga. 78, 79 (1952)
Blanchard & Calhoun Realty Co. v. Comer, 185 Ga. 448, 453(1) (1938) Helton v. Shellnut, 186 Ga. 185 (1938)
DeLong v. Cobb, 215 Ga. 500 (1959)
Lewis v. Williford, 235 Ga. 558 (1975)
6 Contracts
16.400 Contracts; Diligence; Negligence Upon reasonable application and under proper circumstances, a party may be relieved from the injurious consequences of an act done under a mistake of fact. However, relief will not be granted to a party who could have used reasonable care to determine the truth of the matter.
The negligence of the complaining party, preventing relief, is that lack of reasonable care, the absence of which would be a violation of legal duty. Relief may be granted even in cases of negligence by the complainant if it appears that the other party has not
been prejudiced.
O.C.G.A. §§23-2-29, 23-2-32
Keith v. Brewster, 114 Ga. 176 (1901) Williams v. Lockhart, 221 Ga. 343, 344 (1965) J.C. Penney v. West, 140 Ga. App. 110 (1976)
16.410 Contracts; Duty to Ascertain Facts In the absence of misrepresentation or fraud, ignorance of a fact known to the opposite party will not justify relief, unless there is some reason why the injured party should have relied on the opposite party for information and, in so relying, was deceived either by conduct or words.
Ignorance by both parties of a fact shall not justify the interference of the court, nor shall a mistake in judgment or opinion merely as to the value of property authorize
such interference.
O.C.G.A. §23-2-28
Langston v. Langston, 147 Ga. 318 (1917) James v. Tarpley, 209 Ga. 421, 423 (1952) Cline v. Schuster, 221 Ga. 653 (1966)
16.420 Contracts; Misrepresentation; Fraud A written contract will not be reformed in the absence of fiduciary or confidential relations
between the parties because of mistakes as to the contents of the writing on the part of the
Contracts
complaining party who was able to read and fraud of the other party consisting of false representation as to the contents of the writing on which the complaining party relied as true because of confidence in the party making them.
If a party, by reasonable care, could have discovered the truth, relief will not be granted, nor shall ignorance of a fact known to the opposite party justify relief if there has been no misplaced confidence, misrepresentation, or other fraudulent act.
When a contract has been made but, because of a mistake on the part of one of the parties and accompanied by fraud on the part of the other, the instrument as executed does not express the true intent, you may reform the instrument and make it conform to the intent of the parties. But the complaining party must act within a reasonable time. The evidence to justify the reformation must be clear and convincing.
(See 02.040, Clear and Convincing Evidence. Clarke v. Cotton, 263 Ga. 861 [1994].)
O.C.G.A. §23-2-29
Weaver v. Roberson, 134 Ga. 149(1) (1910)
Sheldon v. Hargrose, 213 Ga. 672, 175 (1957)
Quiggle v. Vining, 125 Ga. 98 (1906)
Davis v. United American, etc., 215 Ga. 521, 525 (1959)
16.500 Contracts; Rescission or Cancellation; Unilateral Mistake A written contract will not be reformed, unless the mistake is shown to be the mistake of both parties, but it may be rescinded and cancelled upon the mistake of fact of one party only material to the contract.
When, because of a mistake, a contract does not really represent the truth of the
agreement as understood by one of the parties, it may be rescinded.
O.C.G.A. §23-2-31 Quiggle v. Vining, 125 Ga. 98 (1906) Davis v. United American, etc., 215 Ga. 521, 525 (1959)
8 Contracts
16.510 Contracts; Execution of Contract; Unilateral Mistake
A distinction exists between reforming a contract and executing a contract in case of mistake. To authorize reforming a contract, the court shall be satisfied by the evidence that the mistake was mutual, but the court may refuse to act in the latter case if the mistake is
confined to the party refusing to execute.
O.C.G.A. §23-2-30
16.600 Contracts; Account (See 16.610—16.650. )
16.610 Contracts; Account; Definition An account is a business relation in which goods (and/or services) are furnished upon credit
by one party at the request of another party.
16.620 Contracts; Account; Defendant Must Authorize Account In order to recover upon account, the plaintiff must prove that the goods (services) were furnished for the defendant’s account at the request of the defendant or by someone authorized by the defendant to make such a request.
If goods (services) were furnished at the request of someone other than the defendant, and it was not intended that a credit relationship exist between the plaintiff and
the defendant, you would find against the plaintiff and for the defendant.
16.630 Contracts; Account; Plaintiff Must Prove Correctness In order to recover damages, the plaintiff must prove the correct amount due and unpaid on
the account.
16.640 Contracts; Account Stated An account stated is an agreement by which persons who have had previous transactions with each other fix the amount due in respect to such transactions by mutual agreement and
the one indebted promises payment of the balance.
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Moore v. Hendrix & Hodges, 144 Ga. 646, 648 (1916)
In order to convert an open account into an account stated, an oral agreement as to
the amount and an oral promise to pay are sufficient.
Martin v. Mayer, 63 Ga. App. 387, 399 (1940)
16.650 Contracts; Account Stated by Implication An account may become stated even without express agreement. If a statement of an account is rendered to the debtor and the debtor fails to object to it, the jury may be authorized to infer that the failure to raise any objections was an implied agreement that the account was correct, but this inference is not demanded as a matter of law.
A promise to pay may be either express or implied, but a failure to object to an account rendered does not require the jury to infer a promise to pay from mere acquiescence
in the correctness of the amount. Shores-Mueller Company v. Bell, 21 Ga. App. 194, 195 (1917)
While such a failure to object may be considered by the jury, it is not to be regarded as final proof but only a means of proof having evidentiary value, and it is subject to
explanation and denial by other evidence. Elliott v. National Union Radio Corporation, 68 Ga. App. 873, 876 (1943)
Whether any explanation or denial is sufficient is a matter for the jury to determine, keeping in mind that the burden of proof is on the plaintiff. The jury may find that the failure of the defendant to object within a reasonable time to a statement of account shifts to the defendant the burden of going forward with the evidence or an unfavorable inference may be made regarding the defendant’s testimony. No inference would be drawn from the rendering of a statement of account by the plaintiff if the defendant gave timely objections to any inaccuracies found in the statement or if the defendant has satisfactorily explained the failure to so object.
If you find that there has been no acknowledgment and oral promise to pay, either
expressed or implied, the rules relating to an account stated simply would not apply, and you
10 Contracts
would then resolve the issue based upon the rule that in order to recover, the plaintiff must
prove the correctness of the account and the liability of the defendant to pay it. Lawson v. Dixie Feed and Seed Company Inc., 112 Ga. App. 562 (1965)
(Note: For rules concerning Statute of Limitation on Open Accounts, see O.C.G.A.
§9-3-25; for special rule on Limitations Concerning Mutual Accounts, see O.C.G.A. $9-3-7.)
16.700 Contracts; Quantum Meruit (See 16.710-16.760.)
16.710 Contracts; Quantum Meruit; Statutory Provision Ordinarily, when one renders services or transfers property valuable to another that the other accepts, a promise is implied to pay the reasonable value of the services or property (but this
presumption does not usually arise in cases between very near relatives). O.C.G.A. §9-2-7
(See O.C.G.A. $10-6-37, Suit for Breach of Contract of Agency; §53-12-90, Trusts Implied, When; and §53-12-92, Gift Presumed Between Near Relatives; Rebuttal of
Presumption.)
16.720 Contracts; Quantum Meruit; Definition
Quantum meruit, meaning “as much as a person deserves,” is an action for work and labor founded on an implied promise on the part of the defendant to pay the plaintiff as much as is reasonably deserved for labor performed. It refers to obligations imposed by law without
regard to intention or assent of the parties dictated by reason and justice.
16.730 Contracts; Quantum Meruit; Amount of Recovery The amount of recovery is determined by the jury based upon the reasonable value of the services rendered to the opposite party despite of the absence of a specific agreement as
to value.
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16.740 Contracts; Quantum Meruit; Not Applicable Where Express
Contract Exists When an express contract between the parties exists, then the value of such services and other terms will be set by it, and the plaintiff would not be authorized to recover on quantum meruit, unless you find that the plaintiff performed services not contemplated by the parties
in the original written contract.
Venture Construction Company v. Great American Mortgage Investors, 134 Ga. App. 440, 444 (1975) Rushing v. Jones, 68 Ga. App. 300 (1942)
Recovery may be authorized in guantum meruit when a party receives benefits in
part performance that exceed damages incurred by failure of full performance.
Southern Railway Company v. Branil, 9 Ga. App. 310, 312 (1911)
16.750 Contracts; Quantum Meruit; Essential Requisites for Recovery
In order for the plaintiff to recover, the plaintiff must show that he/she had such a relationship with the defendant as to authorize the plaintiff to render the services alleged, that valuable services were rendered, that such services were accepted, that they benefited the defendant, and that they had a reasonable value. The value of the services must be
proved by a preponderance of the evidence.
Davis v. Glenville Haldi, P.C., 148 Ga. App. 842 (1979) Parker and Company Inc. v. Glenn, 90 Ga. App. 500, 506 (1954)
16.760 Contracts; Quantum Meruit; Circumstances between Near Relatives for Jury to Determine
In order for a party to recover for services from a near relative such as are usually given
because of a natural sense of duty and affection arising out of relation, it must affirmatively
appear that such services were performed under an express contract, or the surrounding
circumstances must plainly indicate that it was the intention of both parties that
compensation would be made.
12 Contracts
It is a question for the jury to determine what circumstances are sufficient to support the usual implication of a promise to pay for services or to repeal a counterinference that the performance was prompted by affection and that the services were rendered without
expectation of payment. Edwards v. Smith, 42 Ga. App. 730 (1931)
(Note: The theory of recovery involved in quantum meruit should be distinguished from actions for money or property that in equity and good conscience there is no right to
retain against another with a legitimate interest therein.)
Whitehead v. Peck, 1 Ga. 140 (1846) Carmichael Tile Company v. Bayley and Company, 42 Ga. App. 408 (1930) Fain v. Neal, 97 Ga. App. 497, 498 (1958)
(Note: The charges on quantum meruit can be modified and used in quantum
valebant situations for goods sold and delivered.)
16.800 Contracts; Rescission
(See 16.810-16.830.)
16.810 Contracts; Rescission; by Consent After a contract is made, neither party to such contract can rescind it merely by giving notice to the other party of the intention to do so without the agreement or consent of the other, but
it may be rescinded with the consent of both parties.
Warren v. Gray, 90 Ga. App. 398, 404 (1954)
16.820 Contracts; Rescission; for Nonperformance In some cases, a party may rescind without the consent of the opposite party for nonperformance of covenants but only when both parties can be restored to the condition
they were in before the contract was made.
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16.830 Contracts; Rescission; Status Quo Ante Required
When a contract is rescinded, the parties shall be restored to their original status.
Brown v. Techdata Corp., 238 Ga. 622 (1977)
14 Contracts
18.000 CONTRACT DAMAGES
18.010 Contract Damages Damages are given as compensation for injury sustained.
Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from the breach and such as the parties contemplated
when the contract was made as the probable result of the breach.
O.C.G.A. §§13-6-1, 13-6-2, 13-6-7
18.011 Contract Damages; Agreement If the parties agree in their contract on the damages for a breach, they are said to be liquidated, and unless the agreement violates some principle of law, the parties are bound
by it.
O.C.G.A. §13-6-7
18.012 Contract Damages; Nominal Damages In every case of breach of contract, the party not breaching it has a right to damages. But, if there has been no actual damage, the plaintiff can recover nominal damages that will carry
expenses of litigation.
O.C.G.A. §§13-6-6, 13-6-12
18.020 Contract Damages; Attorney’s Fees (Expenses of Litigation); Generally The expenses of litigation are not generally allowed as a part of the damages. But, if the defendant has acted in bad faith or has been stubbornly litigious or has caused the plaintiff unnecessary trouble and expense, you may allow them. You should determine from the
evidence the attorney’s fees (or other expense), if any, as will be allowed.
O.C.G.A. §13-6-11
18.021 Attorney’s Fees (Expenses of Litigation); Notes, Provisions in (See O.C.G.A. $13-1-11. Because liability or nonliability will usually be a matter of law, the
same is omitted as a jury charge.)
18.022 Attorney’s Fees (Expenses of Litigation); Exemplary Damages Unless otherwise provided by law, exemplary damages can never be allowed in cases arising
on contracts.
O.C.G.A. §13-6-10
18.030 Contract Damages; Remote or Consequential
Remote or consequential damages are not allowed whenever they cannot be traced solely to the breach of the contract or unless they may be computed exactly, such as the profits that are the immediate fruit of the contract and are independent of any collateral enterprises
entered into in contemplation of the contract.
O.C.G.A. §13-6-8
18.040 Contract Damages; Interest The amount of damages at the date of breach of contract may be increased by the addition of legal interest from that time until the time of recovery.
All liquidated demands, whether by agreement or otherwise the sum to be paid is fixed and certain, bear interest from the time the party shall become liable and bound to pay them; if payable on demand, they bear interest from the time of the demand. In case of promissory notes payable on demand, the law presumes a demand instantly and gives
interest from date.
O.C.G.A. §§13-6-13, 7-4-15
2 Updated August 2019 Contract Damages
18.050 Contract Damages; Warranty, Breach of; Land; Personalty (See 18.051—18.052.)
18.051 Warranty, Breach of; Land
Upon a breach of covenant of warranty of title to land, the damages should be the purchase money with interest from the time of sale, unless the jury should think, under the circumstances of the case, that the use of the premises was equal to the interest on the money and that an equitable setoff should be allowed. If valuable improvements have been
made, the interest should be allowed.
O.C.G.A. §44-5-66
18.052 Warranty, Breach of; Personalty If the buyer has accepted goods and given notification (O.C.G.A. §11-2-607(3)), the buyer may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner that is reasonable. The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value the goods would have been if they had been as warranted, unless special circumstances show proximate damages of a different amount. In a proper case, any incidental and consequential damages under the next section
may also be recovered. O.C.G.A. §11-2-714
The buyer on notifying the seller of the intention to do so may deduct all or any part of the damages resulting from any breach of the contract from any part of the price still due
under the same contract.
O.C.G.A. §11-2-717
18.060 Contract Damages; Expenses Any necessary expense that one of two contracting parties incur in complying with the
contract may be recovered as damages.
Contract Damages Updated August 2019
O.C.G.A. §13-6-9
18.070 Contract Damages; Lessen Damages, Duty to When by a breach of contract one is injured, one is bound to lessen the damages as far as is
practicable by the use of ordinary care.
O.C.G.A. §13-6-5
4 Updated August 2019 Contract Damages
20.000 DEBTOR AND CREDITOR (For cases occurring on or after 7/1/2002, please see O.C.G.A. $18-2-70 et seq.)
20.010 Debtor and Creditor; Acts Void as Against Creditors; Examples The following acts by debtors shall be fraudulent in law against creditors and others, and as
to them null and void:
1) every assignment or transfer by a debtor, insolvent at the time, of real or personal property or chooses in action of any description to any person, either in trust or for the benefit of or on behalf of creditors, where any trust or benefit is reserved to the assignor or any person for him;
2) every conveyance of real or personal estate, by writing or otherwise, and every bond, suit, judgment, and execution or contract of any description had or made with intention to delay or defraud creditors and such intention known to the party taking shall be fraudulent in law as to creditors, and as to them null and void. A bona fide transaction on a valuable consideration and without notice or ground for reasonable suspicion shall be valid; and
3) every voluntary deed or conveyance, not for valuable consideration, made by a
debtor who is insolvent at the time of the conveyance.
O.C.G.A. §18-2-22 (acts before 7/1/2002)
20.020 Debtor and Creditor; Good Faith, Test of When the issue is the good faith of a sale by a debtor, if the jury should find that the sale was made with the intention on the part of the seller to hinder, delay, or defraud a creditor or creditors and such intention was known to the party taking at the time of the sale or could have been known by the party by the exercise of ordinary and reasonable care, the jury should find in favor of the creditor.
If the jury should find that the sale was not made for the purpose of hindering, delaying, or defrauding a creditor or creditors of the seller or if the jury should find that the
sale was made for the purpose of hindering, delaying, and defrauding, and the purchaser had
no knowledge of it and could not acquire such knowledge through the exercise of ordinary
and reasonable care, the jury would be authorized to find in favor of the purchaser.
Spence v. Morrow, 128 Ga. 722(4) (1907) Cunningham v. Avakian, 187 Ga. 575 (1939)
20.030 Debtor and Creditor; Credit on Faith of Title of Spouse If the legal title to land is in a spouse, and credit is extended to that spouse on the faith of such apparent ownership and without knowledge of a secret equity in the other spouse, the rights of the creditor will be superior to and enforced against the secret equity of the other spouse.
(Note: Relating subject matter pertaining to transactions between spouses is set out
under that topic.)
Parker v. Harling, 187 Ga. 419(2) (1939)
20.040 Debtor and Creditor; Right of Debtor to Prefer Creditors
A debtor may pay one creditor before another, and in that regard, the debtor may in good faith give a creditor a lien by mortgage or other legal means, or the debtor may sell the creditor something in payment of the debt or may transfer a cause of action as security for
the debt when the surplus is not reserved for the debtor’s own benefit.
O.C.G.A. §18-2-40
2 Debtor and Creditor
22.000 DIVORCE, EQUITABLE DIVISION OF PROPERTY, AND ALIMONY
(Last updated January 2019 — insert other applicable general civil charges.)
This preliminary charge 22.001 and the general charge 22.005 et al. are specifically adapted for use in domestic cases. We have included cross-references to the civil charge book to facilitate incorporation of other standard charges as appropriate.
For cases that do not involve child support, charge the appropriate parts of Sections 22.000 only. For cases involving child support, charge the appropriate charges of Section 22.000 et al. and then charge the appropriate charges from Section 23.000 et al. Consider a jury trial procedure where assets and alimony are decided first because those verdicts may impact the jury’s decision on child support issues. However, where periodic alimony is being requested and child support is an issue, it makes sense for the jury to determine child support first, so
they know much of the obligor’s income is available to satisfy a periodic alimony award. A
suggested trial procedure is listed below.
Phase 1 a. Preliminary domestic instructions (22.001) b. Presentation of all evidence for case and arguments. c. Charge of court on all issues except child support (22.005 et al.) d. Verdict on divorce, alimony (lump sum and in kind only if it is a case involving
child support; all alimony if child support is not an issue), and equitable division
Phase 2 a. Argument of counsel b. Charge Child Support 23.000 et seq. c. Verdict on gross monthly income of each parent d. Computation by court of child support using the child support worksheet
Phase 3 (if deviations are at issue) a. Court advises the jury as to decision on custody (and visitation)
b. Argument on deviations
Divorce, Equitable Division of Property, and Alimony Updated January 2019 1
c. Charge on deviations
d. Verdict on deviations
e. Computation by court of child support if deviations are awarded using the child
support worksheet
Phase 4 (if periodic alimony and child support are at issue)
a. Court advises the jury as to the final child support award.
b. Verdict on periodic alimony Note: Phases 2, 3, and 4 are for argument, charge, deliberation, and verdict only; there is no further presentation of evidence. For simple cases, it may be possible to combine Phase 1
and Phase 2, but the sequence of decision making by the jury would still apply.
22.001 Divorce (Child Support); Preliminary Instructions (Read before commencement of trial.) Members of the jury, you are about to try the case of
DA . You will be
deciding whether (is/are) entitled to a divorce (note: this may not be an issue if both parties agree to the divorce in the complaint and counterclaim). You will (also) be deciding issues incidental to divorce such as equitable division of property (and alimony) (and child support). Under Georgia law, it is my duty as the trial judge to determine the law applicable to this case, and it is your duty, as the jury, to determine the facts of the case. It is also your duty to apply the law to those facts in reaching your verdict.
The facts are determined by you from the evidence. The evidence consists of two things: testimony and exhibits. Testimony is evidence which you will hear under oath from the witness(es). Exhibits are documents or photos or other items that have been admitted into evidence. You will have those exhibits with you in the jury room for your use during your deliberations.
I caution you that nothing the lawyers or I say during this trial is evidence. Nothing the attorneys say in their opening statements, closing arguments, or during the trial is
evidence, nor is anything I do or say evidence. I have no leanings in this case whatsoever.
(At the beginning of the trial, you will be given various forms such as financial
affidavits and child support calculation schedules of either or both parties. I instruct you that
2 Updated January 2019 Divorce, Equitable Division of Property, and Alimony
these forms are not evidence but are the contentions of the parties in the format required by law. These forms are not to be considered by you as evidence until and unless and to the extent they are supported by admissible evidence, such as by testimony or by other admitted exhibits [or unless the figures of both parties coincide, which you may regard as a stipulation
of fact]).
My interest in this case is to see that the case is tried fairly as to both parties and to see that it is tried according to the laws of the State of Georgia and according to the
Constitutions of this State and of the United States.
00.030 Parties (Optional) In a divorce case such as this, each party has a claim against the other. Each party has the burden of proving entitlement to that which he/she seeks. Each party must prove his/her
respective case by what is known as a preponderance of the evidence.
The term preponderance means greater weight, and as it is used here, preponderance of the evidence means the greater weight of evidence upon the issues involved. The weight of evidence need not be enough to completely free the mind from a reasonable doubt, but to be a preponderance of the evidence, the weight of the evidence must be sufficient to incline
a reasonable and impartial mind to one side of the issue rather than to the other.
If you find that the evidence is evenly balanced on any issue in the case, it is your duty to resolve that issue against the party having the burden of proving that issue.
The procedure followed in a divorce trial is generally as follows: First, the attorneys for both sides have the opportunity to make an opening statement to you. This opening statement is not evidence. Remember that what the lawyers say is not evidence. An opening statement is a preview or an outline of what they expect the evidence to show. Following the opening statements, one party presents evidence; that is, one party calls witnesses and introduces any exhibits they may have. The other party has the right to cross-examine these witnesses. When the first party has presented all his/her evidence, that party will rest his/her case. The other party then has the opportunity to present his/her case, which means they then call witnesses and introduce any exhibits. The first party has the right to cross-examine the
second party’s witnesses.
Divorce, Equitable Division of Property, and Alimony Updated January 2019 3
After the presentation of all the evidence, the attorneys have the opportunity to make a closing argument to you. At this time, the attorneys will point to certain evidence and law they consider favorable to their position and argue persuasively to you to decide the case in their favor. Both sides have the opportunity to make this closing argument. The closing
arguments are not evidence.
Following the closing arguments, I will charge you on the law applicable to this case. I will then ask you to retire to the jury room to deliberate and reach your verdict as to the issue(s) of (equitable division) (alimony). (You will decide child support in a second phase
of the trial.)
Please remember during the course of this trial to listen carefully to all of the evidence. Keep an open mind until all of the evidence has been presented to you. I instruct that it is improper for you to discuss this case with anyone or to allow anyone to discuss the case with you or in your presence or hearing. You cannot discuss the case with each other in the jury room or elsewhere before actual deliberations begin, and then only in the presence of all 12 of you. (After you have returned your verdict on the issue(s) of (equitable division of property) (alimony), I will charge you further on the law pertaining to child support.) Have no contact with the attorneys, parties, or witnesses to this case. Do not go on or about
any areas described by the witnesses to this case.
00.090 Note Taking by Jurors
00.110 Juror Use of Electronic Technology
END OF PRELIMINARY CHARGE
22.005 Divorce; Introduction
You have been considering the case of (enter name of plaintiff) as Plaintiff v. (enter name of defendant) as Defendant, Civil Action No. (enter number). (One of the issues that you must
decide in this case is whether or not is entitled to a divorce.) (The divorce
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is agreed to by the parties and will be granted by the court upon the conclusion of the trial.) You will (also) be deciding issues incidental to divorce. Each party is seeking an equitable division of property (and Plaintiff/Defendant is/are seeking alimony). Each party has the burden of proof as to what he/she seeks. The party who has the burden of proof must prove
his/her case by what is known as a preponderance of the evidence.
The term preponderance means greater weight, and as it is used here, preponderance of the evidence means the greater weight of evidence upon the issues involved. The weight of evidence need not be enough to completely free the mind from a reasonable doubt, but to be a preponderance of the evidence, the weight of the evidence must be sufficient to incline
a reasonable and impartial mind to one side of the issue rather than to the other. If you find that the evidence is evenly balanced on any issue in the case, it is your duty to resolve that issue against the party having the burden of proving that issue.
(Refer to the following charges from General Instructions as appropriate.)
02.100 Evidence, Generally
02.110 Evidence, Direct or Circumstantial
02.120 Expert Witnesses
02.121 Expert Witness; Fair Market Value; Comparable Sales (see 14.210 et seq.,
Condemnation; Fair Market Value)
02.130 Credibility of Witnesses
02.150 Witness, Attacked (Old Impeached) 02.154 Witness, Supported
02.156 Witness, Impeached, Credibility Attacked
02.160 Failure to Produce Evidence 02.161 Failure to Produce Witnesses; Generally
If the divorce is contested, give the portions of 22.010-22.070 that are applicable. If the
divorce is agreed between the parties, go to 22.090.
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22.010 Divorce; How Granted (if contested) Under our law, total divorces may be granted in proper cases. O.C.G.A. §19-5-1 You should decide the issue of divorce first, because if the divorce is not granted,
there is no need to decide any other issue.
22.020 General Charge (Grounds)
The plaintiff in this case is seeking a divorce upon the grounds of. , which is
a legal ground for divorce in Georgia.
O.C.G.A. §19-5-3 (note that all grounds for divorce are listed in O.C.G.A. § 19-5-3 but only selected portions of the code have been included in the pattern jury instructions because they represent the most often cited grounds; refer to the code for other grounds as the facts
of the case may indicate).
22.025 Adultery
Adultery after marriage by either party is a legal ground for divorce in Georgia. A married person commits adultery when he/she voluntarily has sexual intercourse with someone other than his/her spouse.
O.C.G.A. 19-5-3 (6)
22.030 Cruel Treatment Cruel treatment is a legal ground for divorce in Georgia. Cruel treatment is the willful infliction of pain, bodily or mental, upon the complaining party such as reasonably justifies apprehension of danger to life, limb, or health.
O.C.G.A. §19-5-3(10)
Morris v. Morris, 202 Ga. 431 (1947)
22.040 Cruel Treatment; Single Act Ordinarily, a single act of personal violence is not considered cruel treatment, but one act may be sufficient to justify divorce on the ground of cruel treatment in a severe and
atrocious case.
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Phinizy v. Phinizy, 154 Ga. 199 (1922) Reynolds v. Reynolds, 217 Ga. 234, 268 (1961)
22.050 Cruel Treatment; Mental Cruelty Mental anguish and wounded feelings, constantly aggravated by repeated insults and neglect, are as bad as actual bruises, and that which produces one is not more cruel than that which causes the other.
Cohen v. Cohen, 194 Ga. 573 (1942)
Twilley v. Twilley, 195 Ga. 291 (1943)
22.060 Condonation The plaintiff/defendant claims that any fault or misconduct on his/her part has been condoned or forgiven by the defendant/plaintiff. Condonation is forgiveness, either express or implied by a spouse, of a breach of marital duty on the part of the other spouse, with the implied condition that the offense shall not be repeated. New acts constituting grounds for divorce after condonation will revive the grounds for divorce that took place before the condonation. (Note: Charges 22.020 through 22.060 do not apply in irretrievably broken cases if
irretrievably broken is the only ground for divorce, O.C.G.A. §19-5-3[13] and cases cited.)
Odom v. Odom, 36 Ga. 286 (1867)
Phinizy v. Phinizy, 154 Ga. 199 (1922)
Morris v. Morris, 202 Ga. 431 (1947)
22.070 Irretrievably Broken Marriage One of the issues that you must decide is whether or not the plaintiff/defendant is entitled to a divorce. The plaintiff has claimed in the pleadings that he/she is entitled to a divorce on the ground that the marriage is irretrievably broken, and this allegation has been denied by the defendant.
With regard to this issue, a marriage is irretrievably broken if either or both parties are unable or refuse to cohabit, and there are no prospects for a reconciliation between the
parties. It is not necessary to show that either party is at fault in any way. The only question
Divorce, Equitable Division of Property, and Alimony Updated January 2019 7
to be determined is whether or not there are prospects for reconciliation. O.C.G.A. §19-5-3 (13) Harwell v. Harwell, 233 Ga. 89 (1974) McCoy v. McCoy, 281 Ga. 604 (2007)
The fact that one party has hope for reconciliation is not sufficient evidence to sustain a finding that there are genuine prospects for reconciliation. If you find from the evidence that there are no genuine prospects for reconciliation and that the marriage is irretrievably broken, then you would be authorized to grant a divorce to the parties. If you find that there are prospects for reconciliation and that the marriage is not irretrievably broken, then you would not be authorized to return a verdict granting a divorce.
McCoy v. McCoy, 236 Ga. 633 (1976)
22.090 Divorce; Issues Incidental
(If you find that the divorce is to be granted) You must decide issues incidental to divorce. I will charge you first on equitable division of property/alimony. (The issue of child support must be decided in a separate phase of the trial after you have decided [equitable
division/alimony], and I will charge you on that issue at that time.)
22.100 Equitable Division of Property
22.110 General
In this case, the plaintiff/defendant is/are asking for an equitable division of property. The purpose behind the doctrine of equitable division of property is to be sure that property accumulated during the marriage is fairly distributed between the parties.
Payson v. Payson, 274 Ga. 231 (2001)
22.120 Classification of Property In making an equitable division of property, first classify the property as nonmarital or
marital.
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22.121 Nonmarital Property Nonmarital property is property that was acquired before the marriage by any means or property that was acquired during the marriage by gift from a third party (that is, someone other than the other spouse) or by inheritance or by bequest in a will. Nonmarital property can be converted to marital property by an action of the property owner spouse. Whether nonmarital property is converted is a question of fact for you to decide. You should assign to each spouse his or her nonmarital property.
Rooks v. Rooks, 252 Ga. 11 (1984)
McArthur v. McArthur, 256 Ga. 762 (1987)
Sparks v. Sparks, 256 Ga. 788 (1987)
Lerch v. Lerch, 278 Ga. 885 (2005)
Coe v. Coe, 285 Ga. 863 (2009)
Armour v. Holcomb, 288 Ga. 50 (2010)
Miller v. Miller, 288 Ga. 274 (2010)
Shaw v. Shaw, 290 Ga. 354 (2012)
22,122 Source of Funds (Note: Give the following only when funds derived from sale, exchange, or use of nonmarital property must be traced by the jury.)
Property that is acquired during the marriage from funds obtained from the sale, exchange, or use of separate property shall remain the separate property of the person who contributed the funds. This separate property remains the separate property of the individual who acquired it, “the property owning spouse.” This separate property may be subject to equitable division only if you find that it has appreciated (that is, increased in value) due to marital efforts or has been converted to marital property by an action of the owning spouse. I will give you instructions on how to deal with such appreciation later.
Bailey v. Bailey, 250 Ga. 15 (1982) Thomas v. Thomas, 259 Ga. 73 (1989) Horsley v. Horsley, 268 Ga, 460 (1997) Lerch v. Lerch, 278 Ga. 885 (2005)
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Coe v. Coe, 285 Ga. 863 (2009) Miller v. Miller, 288 Ga. 274 (2010) Shaw v. Shaw, 290 Ga. 354 (2012)
22.123 Marital Property All other property that was acquired during the marriage and that was not purchased from sale or exchange of separate property is marital property that shall be subject to equitable division. Marital property is property that is acquired as a direct result of the labor and investments of the husband and/or the wife during the course of the marriage or separate property that has been converted to marital property by an action of the property owning spouse. To determine if property purchased or otherwise acquired during the marriage is marital property and therefore subject to being divided between the spouses or if it is the separate property of either the husband or the wife and is not subject to division of property, you must determine what was the source of the funds to purchase or acquire the property and/or if the property was separate but due to the action of the property owning spouse, it is converted to marital property. The last day on which assets may be acquired so as to be considered marital assets is the day of the final decree of divorce.
Campbell v. Campbell, 255 Ga. 461 (1986)
Thomas v. Thomas, 259 Ga. 73 (1989)
Janelle v. Janelle, 265 Ga. 116 (1995)
Friedman v. Friedman, 259 Ga. 530(2) (1989); overruled on other grounds, 268 Ga. 566
(1997) (Note: If there is an award from personal injury or workers? compensation, note the ruling of Dees v. Dees, 259 Ga. 177 [1989], Johnson v. Johnson, 259 Ga. 658 [1989].)
Lerch v. Lerch, 278 Ga. 885 (2005)
Coe v. Coe, 285 Ga. 863 (2009)
Miller v. Miller, 288 Ga. 274 (2010)
Shaw v. Shaw, 290 Ga. 354 (2012)
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22.124 Appreciation in Value of Nonmarital Property If you find that any nonmarital property has increased in value as a result of the efforts of either or both parties during the marriage, then the increase in value is subject to an equitable division. However, if you find that any nonmarital property has increased in value but the increase in value is not as a result of the efforts of either party or both parties, then this increase would not be subject to an equitable division.
Halpern v. Halpern, 256 Ga. 639 (1987)
Bass v. Bass, 264 Ga. 506 (1994)
Janelle v. Janelle, 265 Ga. 116 (1995)
Payson v. Payson, 274 Ga. 231 (2001)
22.130 Property Title The fact that the property is titled in the name of one party or in the name of both parties is not the determining factor. (Furthermore, gifts of property between a husband and a wife during the marriage do not vest such title in the other spouse to exclude that property from being divided in an equitable division of marital property.)
Stokes v. Stokes, 246 Ga. 765 (1980)
While property may be initially obtained as separate property, that property may be converted into a marital asset by the actions of the separate property owner spouse, such as transferring full, partial, or joint ownership in the property to his/her spouse.
Lerch v. Lerch, 278 Ga. 885 (2005) Miller v. Miller, 288 Ga. 274 (2010) Shaw v. Shaw, 290 Ga. 354 (2012)
22.150 Factors in Equitable Division
Equitable division of marital property may or may not be an equal division of property, and this is a matter for the jury to determine. (After you have determined what property is nonmarital property and what property is marital property) In order to make an equitable division of marital property, you should consider the duration of the marriage; any prior
marriage of either party; the age, health, occupation, and vocational skills and employability
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of each party; and the contribution or services of each spouse to the family unit. You should also consider the amount and sources of income, the estate, debts, liabilities, and needs of the parties, as well as debts against the property, and the opportunity of each party for future acquisition of assets by employment or otherwise. Furthermore, the conduct of the parties, both during the marriage and with reference to the cause of the divorce, is relevant and may be considered in your determination of an equitable division of marital property.
Peters v. Peters, 248 Ga. 490 (1981)
Bloomfield v. Bloomfield, 282 Ga. 108 (2007)
22.170 Methods of Equitable Division In making an equitable division of property in this case, you should bear in mind that the law permits you to make an equitable division of property in several different ways:
1) You may make an equitable division of specific personal property or real
property. That is, you may designate a specific property (such as so many shares of stock in a named company or a certain house or tract of land) to be awarded as equitable division of property.
2) You may make an equitable division of property in cash. That is, you may designate a certain sum of money to be awarded as an equitable division of property, even though that sum of money is not presently in the form of cash.
3) You may make an equitable division of property by awarding specific items of property and also awarding an amount in cash.
4) You may award percentages of property to spouses or require the parties to sell property and award the proceeds equitably to the parties.
Clements v. Clements, 255 Ga. 714 (1986)
22.180 Resulting Trust; Equitable Division
The plaintiff/defendant is claiming an entitlement to certain property, not as part of an equitable division, but rather because of a resulting trust set up by the parties. The defendant/plaintiff is denying that any resulting trust in the property was ever established
and that the defendant/plaintiff holds title to the property and owns the property by right.
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When a party purchases property (in whole or in part) to be placed in a spouse’s name and there is a delivery and acceptance of the title to the property by the other spouse, then it is presumed under law that the property is a gift. That presumption may be rebutted if it is shown that a resulting trust was established. In order to show that a resulting trust was established, the party claiming that the trust was established must prove, by clear and convincing evidence, that the property was purchased with the party’s own funds and for the party’s own benefit, and that the title to such property (in whole or in part) was placed in the other spouse as a matter of convenience or as an agreement for some other purpose and that the spouse was holding title to the property merely as trustee for the benefit of the other spouse.
The presumption of a gift may be rebutted by evidence showing that the party who made the purchase thereafter exercised ownership over the property in such a manner as was inconsistent with ownership by the other spouse. In determining this issue, you may consider evidence of any acts by the spouse holding title whereby that spouse appeared to recognize that actual ownership was in the other spouse.
If you find by clear and convincing evidence that the plaintiff’ s/defendant’s own funds were used to purchase (specify property in dispute) and that the plaintiff/defendant put the title to all or part of it in the name of the other spouse, and if you further find that, at the time the plaintiff/defendant did so, the parties recognized and agreed that the spouse holding the title was doing so as the trustee for the spouse who purchased the property, then you should find that a resulting trust was created and you should award the title to the property back to_the defendant/plaintiff. If you find that there was no such recognition and agreement between the parties, then the plaintiff’ s/defendant’s placement of the title in the name of the other spouse would be considered a gift of (_interest in) the property, and you should not find a resulting trust but should leave the title as is.
O.C.G.A. §53-12-1 et seq., 53-12-91 Hargrett v. Hargrett, 242 Ga. 725, 727 (1978); overruled on other grounds Harrell v. Harrell, 249 Ga. 170 (1982)
(See 02.040, Clear and Convincing Evidence. Clarke v. Cotton, 263 Ga. 861 [1994].)
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(If alimony or child support is also in issue, include the following.)
After you have decided this issue and which party will have the actual ownership of the property, then the property should be considered by you as being in that party’s estate upon your consideration of the issue(s) of alimony and/or child support. You should decide the issue of the alleged resulting trust before considering the issue(s) of alimony and/or child support.
As [have instructed you, the plaintiff/defendant (both parties) is (are) seeking an award of alimony from the other party. Alimony may (or may not) be awarded based upon the evidence presented as to entitlement, need, and ability to pay; it may be denied for adultery/desertion/misconduct. In determining whether a resulting trust as to certain property was set up by these parties, you are not to concern yourselves with the elements of entitlement to alimony, financial need, or the ability to pay. (Nor should you concern yourselves with any evidence as to adultery/desertion/misconduct that may have caused the
separation of the parties).
22.182 Inceptive Fraud (Constructive Trust); Equitable Division The plaintiff/defendant is claiming an entitlement to certain property, namely, not as part of an equitable division, but rather because of an alleged inceptive fraud by the other spouse. The defendant/plaintiff denies any inceptive fraud. The defendant/plaintiff claims to hold the title to the property and to own it legally and by right. This claim presents another issue for you to determine.
Parks v. Parks, 240 Ga. 1 (1977)
Hargrett v. Hargrett, 242 Ga. 725, 728 fn. 2 (1978); overruled on other grounds
If a person purchases property with their own funds but causes the title to (an interest in) the property to be placed in their spouse’s name and there is a delivery and acceptance of the (title to the) property, then it is presumed under law to be a gift. However, that presumption may be rebutted if it is shown that inceptive fraud occurred. To show inceptive fraud, it must be established that the spouse receiving (title to) the property made a promise to the purchasing spouse to induce the purchasing spouse to execute the deed (make the
transfer, etc.) and the promise was fraudulently made with no intent to comply.
Hargrett v. Hargrett, 242 Ga. 725, 728 (1978); overruled on other grounds
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If you find that the plaintiff/defendant transferred (executed) the deed to certain property (or an interest in certain property) to his/her spouse, in return for and because of a promise made by that spouse, but that the promise was fraudulently made by the defendant/plaintiff with the intention not to comply, then you may find that the defendant/plaintiff committed inceptive fraud in obtaining the title (property) (interest in the property), and the deed (transfer) may be set aside and the property awarded to the spouse who originally purchased (owned) it.
If you find that there was no inceptive fraud on the part of the defendant/plaintiff, then the plaintiff’ s/defendant’s placement of the title in the name of his/her spouse would be considered a gift (a interest in the property), and you should not find any
inceptive fraud but should leave the property as presently titled.
(If alimony or child support is also in issue, include the following.)
After you have decided this issue and determined which person will have actual ownership of the property, then you should consider the property as being in that person’s estate upon your consideration of the issue(s) of alimony/child support. You should decide the issue of inceptive fraud before considering the issue(s) of alimony/child support.
As I have instructed you, the plaintiff/defendant (both parties) is (are) seeking an award of alimony from the other party. (Alimony may or may not be awarded based upon the evidence presented as to entitlement, need, and ability to pay, and may be denied for adultery/desertion/misconduct.) In determining whether or not the plaintiff/defendant committed inceptive fraud, you are not to concern yourselves with the question of
entitlement to alimony, financial need, or the ability to pay.
22.184 Partitioning; Equitable Division The plaintiff/defendant/both parties is/are claiming that certain property should be divided or partitioned between them. Any property owned either in whole or in part by the other spouse may be divided between them on an equitable basis. This is not an award of alimony but an equitable division of property.
Stokes v. Stokes, 246 Ga. 765, 771 (1980)
Daniel v. Daniel, 277 Ga. 871 (2004)
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22.190 Coordination of Equitable Division with Nonmarital/Separate Property Nonmarital property that belongs to one of the parties may be taken into account in deciding the equities of the division of marital property between the parties. However, nonmarital property may not be awarded to the other party as an equitable division of property. Nonmarital property must be awarded to the party who you find owns it according to the
instructions I have given you.
22.200 Introduction to Alimony (Give the following portion of the charge only if alimony is requested.)
I have just given you instructions about equitable division of property. Next, I am going to instruct you about alimony.
(name the party) is asking for an award of alimony.
You can only make an equitable division of property from marital property (as I have just instructed you), but you can make an alimony award from anything that a person owns or is awarded to them as their equitable division of property or from future earnings.
The order of these instructions does not mean that you have to make a decision about equitable division of property before deciding alimony. You may decide equitable division before deciding alimony, or you may decide alimony before deciding equitable division of property. You may grant alimony and no equitable division of property, or you may grant equitable division of property and no alimony, or you may grant both, or you may
grant neither.
22.210 Alimony Ladies and gentlemen of the jury, alimony is defined as an award from one party for the support of the other when the parties are living separate and apart. O.C.G.A. §19-6-1(a) You are authorized, but not required, to award alimony to the party claiming a right to alimony in accordance with that party’s needs and the other party’s ability to pay.
O.C.G.A. §19-6-1(c)
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(The following should be used if the charge on equitable division of property has been given.)
If you decide to make an award of alimony in this case, then you should take into consideration whether such award is in place of or in addition to an award of equitable division of property. Additionally, you should bear in mind that assets assigned as nonmarital property that were not subject to an equitable division may be awarded as alimony.
Before considering the amount of alimony to be awarded, you must first decide whether the party (parties) requesting alimony should receive alimony at all.
A spouse is not entitled to alimony as a matter of right solely because the parties have been married. In determining whether or not to grant alimony, you should consider evidence, if any, of the factual cause of the separation between parties. You may also consider evidence, if any, of each party’s conduct toward the other.
0.C.G.A. §19-6-1
Odom v. Odom, 239 Ga. 830 (1977) Duncan v. Duncan, 262 Ga. 872 (1993) Weir v. Weir, 287 Ga. 443 (2010)
22.220 Adultery
You shall not award alimony to a party claiming alimony if the preponderance of the evidence shows that the party claiming alimony committed adultery and this adultery caused the parties to separate. A married person commits adultery when he or she voluntarily has sexual intercourse with someone other than his or her spouse.
O.C.G.A. 19-6-1 (b)
22.230 Desertion You shall not award alimony to a party claiming alimony if the preponderance of the evidence shows that the party claiming alimony deserted his/her spouse and that desertion
caused the parties to separate. To find desertion, you must find that the spouse left
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1) intentionally and willfully, without just cause;
2) without the consent of the other spouse; and
3) with an intention never to return to the marriage relationship.
Rogers v. Rogers, 202 Ga. 329 (1947)
However, it is not desertion if you find that the party claiming alimony was driven
off by the other spouse.
22.240
Amount of Alimony
If, based on all the evidence, you determine that the party claiming alimony is entitled to
alimony, then you must decide the amount, type, or kind of alimony to be awarded. Walton v. Walton, 219 Ga. 729 (1964) McNally v. McNally, 223 Ga. 246 (1967) Farrish v. Farrish, 279 Ga. 551 (2005) Rieffel v. Rieffel, 281 Ga. 891 (2007)
In determining the amount of alimony, if any, to be awarded, you should consider the
following: 1) the standard of living established during the marriage; 2) the duration of the marriage; 3) the age and the physical and emotional condition of each party; 4) the financial resources of each party; 5) if applicable, the time necessary for either party to acquire sufficient education or training to enable him/her to find appropriate employment; 6) the contribution of each party to the marriage, including, but not limited to,
18
services rendered in homemaking, child care, education, and career building of
the other party;
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7) the condition of each party, including their separate estate, earning capacity, and fixed liabilities; and 8) such other relevant factors as you deem equitable and proper.
O.C.G.A. § 19-6-5 (a)(1-8)
22.250 Types of Alimony Awards; Method of Payment If you decide to make an award of alimony, you should bear in mind that the law permits alimony to be awarded in several ways:
a) Lump sum alimony. You may make a lump sum cash award to be paid out of the estate or assets of the other spouse, and you may require that such a lump sum be paid in one payment or in installments for a specific period of time. If you find that the evidence warrants the payment of a lump sum of alimony in installments, you should bear in mind that this award is considered a property award and will not terminate upon the death of either party and that such payments will be payable to or by the estate of a deceased party.
b) Alimony in kind. You may make an award of alimony in kind, which means an award of designated property, including personal property and real estate, or an award of a designated interest in real or personal property. Property as used here includes not only personal property (such as automobiles, household furnishings, insurance policies) but also real property (such as ownership of an interest in land). The property may be sold and may be divided in whatever manner you decide as justified by the evidence. You should bear in mind that this award is considered a property award and will not terminate upon the death of either party and that such payments will be payable to or by the estate of a deceased party.
c) Periodic alimony. You may make an award of periodic alimony payments to be paid in the future; for instance weekly, monthly, or quarterly payments. This award of periodic alimony payments will terminate upon the death of either party
and is not chargeable to the estate of a deceased party.
Awards of lump sum alimony or a property award payable in installments will not
end upon the spouse’s remarriage or death. However, all obligations for periodic alimony,
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however created, where the time for performance has not arrived, end upon the remarriage of the party to whom the obligations are owed unless otherwise specified.
O.C.G.A. §19-6-5(b)
You may make an award of alimony by using any one of these three methods or by combining any two of these three methods or by using all three of these methods, if you find
the evidence justifies you in doing so.
(The following should be used if the charge on equitable division of property has been given.) Any award you make for alimony should take into consideration whether such award
is in place of or in addition to an award of equitable division of property.
22.260 Resulting Trust; Alimony
The plaintiff/defendant is claiming an entitlement to certain property, not as an award of alimony, but rather because of resulting trust set up by the parties. The defendant/plaintiff is denying that any resulting trust in the property was ever established and that the defendant/plaintiff holds title to the property and owns the property by right.
When a party purchases property (in whole or in part) to be placed in a spouse’s name, and there is a delivery and acceptance of the title to the property by the other spouse, then it is presumed under law that the property is a gift. That presumption may be rebutted if it is shown that a resulting trust was established. In order to show that a resulting trust was established, the party claiming that the trust was established must prove, by clear and convincing evidence, that the property was purchased with the party’s own funds and for the party’s own benefit, and that the title to such property (in whole or in part) was placed in the other spouse as a matter of convenience or as an agreement for some other purpose and that the spouse was holding title to the property merely as trustee for the benefit of the other spouse.
The presumption of a gift may be rebutted by evidence showing that the party who made the purchase thereafter exercised ownership over the property in such a manner as was
inconsistent with ownership by the other spouse. In determining this issue, you may consider
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evidence of any acts by the spouse holding title whereby that spouse appeared to recognize that actual ownership was in the other spouse.
If you find by clear and convincing evidence that the plaintiff’ s/defendant’s own funds were used to purchase (specify property in dispute) and that the plaintiff/defendant put the title to all or part of it in the name of the other spouse, and if you further find that, at the time the plaintiff/defendant did so, the parties recognized and agreed that the spouse holding the title was doing so as the trustee for the spouse who purchased the property, then you should find that a resulting trust was created and you should award the title to the property back to the defendant/plaintiff. If you find that there was no such recognition and agreement between the parties, then the plaintiff’ s/defendant’s placement of the title in the name of the other spouse would be considered a gift of (_interest in) the property, and you should not find a resulting trust but should leave the title as is.
O.C.G.A. §53-12-1 et seq., 53-12-91 Hargrett v. Hargrett, 242 Ga. 725, 727 (1978); overruled on other grounds Harrell v. Harrell, 249 Ga. 170 (1982)
(See 02.040, Clear and Convincing Evidence. Clarke v. Cotton, 263 Ga. 861 [1994].)
(If alimony or child support is also in issue, include the following.)
After you have decided this issue and which party will have the actual ownership of the property, then the property should be considered by you as being in that party’s estate upon your consideration of the issue(s) of alimony and/or child support. You should decide the issue of the alleged resulting trust before considering the issue(s) of alimony and/or child support.
As [have instructed you, the plaintiff/defendant (both parties) is (are) seeking an award of alimony from the other party. Alimony may (or may not) be awarded based upon the evidence presented as to entitlement, need, and ability to pay; it may be denied for adultery/desertion/misconduct. In determining whether a resulting trust as to certain property was set up by these parties, you are not to concern yourselves with the elements of entitlement to alimony, financial need, or the ability to pay. (Nor should you concern
yourselves with any evidence as to adultery/desertion/misconduct that may have caused the
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separation of the parties).
22.270 Inceptive Fraud (Constructive Trust); Alimony The plaintiff/defendant is claiming an entitlement to certain property, namely : not as an award of alimony, but rather because of an alleged inceptive fraud by the other spouse. The defendant/plaintiff denies any inceptive fraud. The defendant/plaintiff claims to hold the title to the property and to own it legally and by right. This claim presents another issue for you to determine.
Parks v. Parks, 240 Ga. 1 (1977)
Hargrett v. Hargrett, 242 Ga. 725, 728 fn. 2 (1978); overruled on other grounds
If a person purchases property with their own funds but causes the title to (an interest in) the property to be placed in their spouse’s name and there is a delivery and acceptance of the (title to the) property, then it is presumed under law to be a gift. However, that presumption may be rebutted if it is shown that inceptive fraud occurred. To show inceptive fraud, it must be established that the spouse receiving (title to) the property made a promise to the purchasing spouse to induce the purchasing spouse to execute the deed (make the
transfer, etc.) and the promise was fraudulently made with no intent to comply.
Hargrett v. Hargrett, 242 Ga. 725, 728 (1978); overruled on other grounds
If you find that the plaintiff/defendant transferred (executed) the deed to certain property (or an interest in certain property) to his/her spouse in return for and because of a promise made by that spouse but that the promise was fraudulently made by the defendant/plaintiff with the intention not to comply, then you may find that the defendant/plaintiff committed inceptive fraud in obtaining the title (property) (interest in the property), and the deed (transfer) may be set aside and the property awarded to the spouse who originally purchased (owned) it.
If you find that there was no inceptive fraud on the part of the defendant/plaintiff, then the plaintiff’ s/defendant’s placement of the title in the name of his/her spouse would be considered a gift (a interest in the property), and you should not find any
inceptive fraud but should leave the property as presently titled.
(If alimony or child support is also in issue, include the following.)
22 Updated January 2019 Divorce, Equitable Division of Property, and Alimony
After you have decided this issue and determined which person will have actual ownership of the property, then you should consider the property as being in that person’s estate upon your consideration of the issue(s) of alimony/ child support. You should decide the issue of inceptive fraud before considering the issue(s) of alimony/child support.
As I have instructed you, the plaintiff/defendant (both parties) is (are) seeking an award for alimony from the other party. (Alimony may or may not be awarded based upon the evidence presented as to entitlement, need, and ability to pay, and may be denied for adultery/desertion/misconduct.) In determining whether or not the plaintiff/defendant committed inceptive fraud, you are not to concern yourselves with the question of
entitlement to alimony, financial need, or the ability to pay.
22.280 Partitioning; Alimony The plaintiff/defendant/both parties is/are claiming that certain property should be divided or partitioned between them. Any property owned either in whole or in part by the other spouse may be divided between them on an equitable basis. This is not an award of alimony but an equitable division of property.
Stokes v. Stokes, 246 Ga. 765, 771 (1980)
Daniel v. Daniel, 277 Ga. 871 (2004)
22.290 Coordination of Alimony and Nonmarital/Separate Property Nonmarital property that belongs to one of the parties may be taken into account in deciding
questions of alimony.
22.300 Child Support; Determined Later (Charge only if child support is at issue).
After you make your determinations about (divorce/equitable division of property/alimony) and have returned your verdict, you will be called upon to decide issues of child support. While you have heard the evidence relevant to child support, you have not yet heard the law applicable to that issue. You should not speculate on possible child support issues in arriving at your verdict on the issues of (divorce/equitable division/alimony).
However, the awards you make for (equitable division/alimony) may affect your award of
Divorce, Equitable Division of Property, and Alimony Updated January 2019 23
child support, and I will instruct you further on how these issues relate in the child support
phase of the trial after you have returned your initial verdict.
(Conclusion charges)
02.520 Verdict in Writing
02.530 Court Has No Interest in Case 02.550 Sympathy
02.560 Alternate Jurors
02.700 Verdict (Hung Jury)
(For second phase or child support instructions, see section 23.000.)
22.640 Form of Verdict
I will now instruct you as to the form of your verdict, that is, the language you should use in preparing your verdict on the issue(s) that you are to decide in this case. (I have prepared a verdict form to assist you in reducing your verdict to writing, and you will have that form
with you in the jury room.)
22.641 Form of Verdict; Divorce (if at issue)
As to the issue of divorce, your verdict should read, “We, the jury, find that the parties are (are not) entitled to a divorce.” If you find that they are not entitled to a divorce, that will end your deliberations and you shall at that point return your verdict without deciding any other issues in the case. If you do award a divorce, then you will go on to decide all other issues. (Note: If the parties agree and have properly pleaded their case and/or presented proper evidence, the trial court can grant a judgment of divorce on the pleadings and this is
no longer a jury issue).
24 Updated January 2019 Divorce, Equitable Division of Property, and Alimony
22.642 Form of Verdict; Nonmarital Property
As to the determination of nonmarital property, your verdict should read, “We, the jury, find the following property to be the separate property of the plaintiff/defendant.” Your verdict should state specifically what property is the nonmarital/separate property of each party.
22.643 Form of Verdict; Equitable Division of Marital Property As to equitable division of property, your verdict should read, “We, the jury, find the following property is subject to equitable division.” Your verdict should state specifically
what property and what interest in that property you are awarding and to whom.
22.644 Form of Verdict; Alimony
As to the issue of alimony, your verdict should read, “We, the jury, find that the plaintiff/defendant is (is not) entitled to alimony.” If you find that plaintiff/defendant is/are entitled to alimony, you would continue and say what type, kind, or amount of alimony you find.
If you find for a lump sum award, your verdict should read, “We award a lump sum of alimony to be paid as follows,” and then set out the amount and the date of the payment or, if you find it is to be paid in installments, set out the dates or times when the installments are to be made and the amount of each installment.
If you find for alimony in kind (that is, an award of designated property or interest in property), your verdict should read, “We award alimony in kind as follows,” and then state specifically what property or interest in property you are awarding.
If you find for periodic payments of alimony, your verdict should read, “We award ( ) dollars alimony,” and you would fill in the amount you find, and then continue, “to be paid weekly, monthly,” or whatever other period you determine and for however long you may determine.
If you find that any obligation for periodic alimony, however created, should or should not be terminated at any particular time in the future or suspended for any period of time in the future or terminated or continued upon any particular event in the future, you
should set out in your verdict your exact findings.
Divorce, Equitable Division of Property, and Alimony Updated January 2019 25
If the evidence authorizes it, you may provide for changes in the amount of alimony to be paid in the future. You should specify the changed amount and the particular time or date or event that will cause the change to take effect.
If you find payments should be made to third parties for specific goods or services, your verdict should read, “We award alimony and require the defendant/plaintiff to make all,
or some specified part, of payments as they become due and owing” or
upon some schedule or upon the happening of some event.
22.645 Form of Verdict; Resulting Trust As to the issue of whether there is or is not a resulting trust of certain property, your verdict should read, “We, the jury, find that the plaintiff/defendant is (is not) holding
property in trust for the defendant/plaintiff.”
22.646 Form of Verdict; Inceptive Fraud As to the issue of whether there was or was not inceptive fraud by the defendant/plaintiff in obtaining (title to) property, your verdict should read, “We, the jury, find
that the defendant/plaintiff did (did not) commit inceptive fraud in obtaining title to property.”
26 Updated January 2019 Divorce, Equitable Division of Property, and Alimony
22.700 Verdict Form
IN THE SUPERIOR COURT OF COUNTY STATE OF GEORGIA PLAINTIFF, * * Plaintiff, * CIVIL ACTION NO. Vv. x * NO. DEFENDANT, * * Defendant. * VERDICT
I. DIVORCE
We, the jury, find as follows (choose one): The Parties are entitled to a divorce.
The Parties are not entitled to a divorce.
If you find the parties are entitled to a divorce, proceed to the remaining sections below. If you find the parties are not entitled to a divorce, this concludes your deliberations,
and you should proceed to the end of the verdict form and sign and date it.
Il. DETERMINATION OF SEPARATE PROPERTY
We, the jury, find as follows: A. Plaintiff’ s separate property is:
Divorce, Equitable Division of Property, and Alimony Updated January 2019 27
B. Defendant’s separate property is:
IHI. EQUITABLE DIVISION OF MARITAL PROPERTY
A. Plaintiff is awarded the following marital property:
B. Defendant is awarded the following marital property:
C. Plaintiff shall pay the following marital debts:
D. Defendant shall pay the following marital debts:
28 Updated January 2019 Divorce, Equitable Division of Property, and Alimony
IV.
E. Other:
ALIMONY GENERALLY
Is Plaintiff/Defendant entitled to alimony? (circle one) Yes No If your answer is no, proceed to the end of the verdict form and sign and date it.
If your answer is yes, proceed to Section V below.
LUMP SUM ALIMONY
Is Plaintiff/Defendant entitled to lump-sum alimony? (circle one)
Yes No
If your answer is no, (proceed to Section VI regarding Periodic Alimony with No Award of Child Support) (await further instructions from the Court and then proceed to Section VII regarding Periodic Alimony with Award of Child Support).
If your answer is yes, complete one or both of the following, and then (proceed to Section VI regarding Periodic Alimony with No Award of Child Support) (await further instructions from the Court and then proceed to Section VII regarding
Periodic Alimony with Award of Child Support).
A. Plaintiff/Defendant is awarded lump-sum alimony in the amount of
$ to be paid as follows:
Divorce, Equitable Division of Property, and Alimony Updated January 2019 29
B. Plaintiff/Defendant is awarded as lump-sum alimony-in-kind the following
designated property:
Note for the trial judge: If this case DOES NOT involve a child support award, then have
the jury proceed to deliberate on periodic alimony in Section VI below. If this case DOES involve an award of child support, then do not have the jury deliberate on periodic alimony in this phase of the deliberations. For jurors to properly consider the respective parties’ need and ability to pay alimony, they will need to know the final amount of child support. If this is the case, use Section VII below and submit this to the jurors after they have deliberated on incomes and deviations for child support and you have advised them
of the final child support award.
VI. PERIODIC ALIMONY (WITH NO AWARD OF CHILD SUPPORT)
Is Plaintiff/Defendant entitled to periodic alimony? (circle one)
Yes No
If your answer is No, stop and go to the end of the verdict form and sign and date it.
If your answer is Yes, continue below.
A. Plaintiff/Defendant is awarded, as periodic alimony, payments in the amount of
$ , to be paid (weekly) (monthly) (other (designate frequency): )
B. This award of alimony will be for: (choose and circle “1” or “2” and edit
appropriately):
1. Lifetime Alimony (If awarding lifetime alimony, check all conditions upon which this award may terminate):
Terminates upon recipient’s death (obligation survives remarriage).
30 Updated January 2019 Divorce, Equitable Division of Property, and Alimony
Terminates upon recipient’s death or remarriage, whichever occurs
first. Other (specify a future event): OR 2. Periodic Alimony for a term of years and/or months Uf
awarding alimony for a term, check all conditions upon which this award may terminate):
Terminates upon recipient’s death (obligation survives remarriage).
Terminates upon recipient’s death or remarriage, whichever occurs first.
Other (specify a future event):
VII. PERIODIC ALIMONY (WITH AWARD OF CHILD SUPPORT)
The jury having been informed by the Court that Plaintiff s/Defendant’s final child
support obligation is per month, we, the jury, find as follows with
regard to periodic alimony: Is Plaintiff/Defendant entitled to periodic alimony? (circle one) Yes No If your answer is No, stop and go to the end of the verdict form and sign and date it.
If your answer is Yes, continue below.
A. Plaintiff/Defendant is awarded, as periodic alimony, payments in the amount of
$ , to be paid (weekly) (monthly) (other (designate frequency):
Divorce, Equitable Division of Property, and Alimony Updated January 2019 31
)
B. The award of alimony will be for: (choose and circle “1” or “2” and edit
appropriately):
1. Lifetime Alimony (If awarding lifetime alimony, check all conditions upon which this award may terminate):
Terminates upon recipient’s death (obligation survives remarriage).
Terminates upon recipient’s death or remarriage, whichever occurs
first. Other (specify a future event): OR 2. Periodic Alimony for a term of years and/or months (Zf awarding alimony for a term, check all conditions upon which this award may terminate): Terminates upon recipient’s death (obligation survives remarriage). Terminates upon recipient’s death or remarriage, whichever occurs first. Other (specify a future event): This day of , 20 :
Foreperson (Signature)
Foreperson (Please Print Name)
32 Updated January 2019 Divorce, Equitable Division of Property, and Alimony
23.000 CHILD SUPPORT
23.001 Child Support; Obligation Parents must support their minor children (whether the children are legitimate or illegitimate). It is the duty of each parent to provide for the maintenance, protection, and
education of his or her child(ren).
O.C.G.A. § 19-7-2
23.050 Child Support; Number of Children The number of children for whom you will be calculating child support is , and such support will continue for the child until that/those child(ren) (reach[es] age 18, die[s], marr[y]ies, or become[s] emancipated, whichever occurs first. However, in the event the child(ren) continue(s) to be enrolled in and is/are attending high school (secondary school), child support will continue beyond the child(ren)’s 18" birthday(s), but not after the child(ren) reach(es) the age of 20.
(Note: The judge must decide the number of children to be supported and in the exercise of sound discretion, if the support will continue past majority of the child if the
child is enrolled in and attending secondary school past majority.)
O.C.G.A. § § 19-6-15(e)
23.100 Gross Income In order to determine the amount of child support required in this case, you must first determine and make a written finding of each parent’s gross monthly income. (Gross
monthly income may include imputed income.)
O.C.G.A. § 19-6-15(b)
23.110 Gross Income; Defined Gross income includes all income from any source, whether earned or unearned. Gross
income must be calculated before deductions for taxes and other deductions such as
preexisting orders for child support and credits for other qualified children. Gross income includes, but is not limited to, the following:
(Charge only those that apply.)
1) salaries;
2) commissions, fees, and tips;
3) income from self-employment;
4) bonuses;
5) overtime payments;
6) severance pay;
7) recurring income from pensions or retirement plans, including, but not limited to, Veterans’ Administration, Railroad Retirement Board, Keoghs, and individual retirement accounts;
8) interest income;
9) dividend income;
10) trust income;
11) income from annuities;
12) capital gains;
13) disability or retirement benefits that are received from the Social Security Administration pursuant to Title II of the federal Social Security Act;
14) worker’s compensation benefits, whether temporary or permanent;
15) unemployment insurance benefits;
16) judgments recovered for personal injuries and awards from other civil actions;
17) gifts that consist of cash or other liquid instruments or that can be converted into cash;
18) prizes or lottery winnings;
19) alimony or maintenance received from persons other than parties to the proceeding before the court;
20) assets that are used for the support of the family;
21) fringe benefits; and
22) other income supported by the evidence.
O.C.G.A. § 19-6-15(f)(1)(A) and (C)
2 Updated August 2020 Child Support
(Note: Give as appropriate in original divorce cases in which equitable division is also decided.)
Income for purposes of child support may include gift, inheritance, or premarital
property.
23.120 Income from Self-Employment If there is evidence of self-employment for plaintiff/defendant, you must compute the income on a monthly basis.
Income from self-employment includes, but is not limited to, income from (give as
applicable)
1) business operations;
2) work as an independent contractor or consultant;
3) sales of goods or services;
4) rental properties;
5) royalties;
6) proprietorship of a business; and
7) joint ownership of a partnership, limited liability company, or closely held
corporation.
In order to calculate self-employment income, you should total gross receipts from self employment and then subtract ordinary and reasonable expenses necessary to self- employment to produce such income. Ordinary and reasonable expenses of self-employment or business operations necessary to produce income do not include, and you should not
subtract the following:
a) excessive promotional, travel, vehicle, or personal living expenses; depreciation on equipment; or costs of operation of home offices; or
b) amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses
determined by you, the jury, to be inappropriate for determining gross income.
Income and expenses from self-employment or operation of a business should be
carefully reviewed by you, the jury, to determine the appropriate level of gross income
Child Support Updated August 2020 3
available to the parent to satisfy a child support obligation. Generally, this amount will differ
from a determination of business income for tax purposes.
O.C.G.A. § 19-6-15(f)(1)(B)
23.130 Fringe Benefits
You should count and include as income any fringe benefits or “in kind” remuneration received by a parent in the course of employment or operation of a trade or business if the benefits significantly reduce personal living expenses. Such fringe benefits might include, but are not limited to, use of a company car, housing, or room and board.
Fringe benefits do not include employee benefits that are typically added to the salary, wage, or other compensation that a parent may receive as a standard added benefit, including, but not limited to, employer paid portions of health insurance premiums or employer contributions to a retirement or pension plan.
O.C.G.A. § 19-6-15((1)(C)
23.300 Variable Income
Variable income such as commissions, bonuses, overtime pay, military bonuses, and dividends shall be averaged over a reasonable period of time consistent with the circumstances of the case. You should add this amount to a parent’s fixed salary or wages to
determine gross income.
O.C.G.A. § 19-6-15(f)(1)(D)
23.310 Irregular or One-Time Income
(If this applies, the court must provide a separate verdict form for nonaveraged income in this case.)
When income is received on an irregular, nonrecurring, or one-time basis, you may, but are not required to, average or prorate the income over a reasonable specified period of time or require the parent to pay as a one-time support amount a percentage of his or her nonrecurring income, taking into consideration the percentage of recurring income of that
parent.
4 Updated August 2020 Child Support
O.C.G.A. § 19-6-15(f)(1)(D)
23.320 Military Compensation and Allowances
Income for a parent who is an active duty member of the regular or reserve component of the (United States armed forces) (the United States Coast Guard) (the merchant marine of the United States) (the commissioned corps of the Public Health Service) (the National Oceanic and Atmospheric Administration) (the National Guard) (the Air National Guard)
shall include:
a) Base pay; b) Drill pay;
c) Basic allowance for subsistence, whether paid directly to the parent or received
in-kind; and
d) Basic allowance for housing, whether paid directly to the parent or received in-
kind, determined at the parent’s pay grade at the without dependent rate. However, the basic housing allowance shall include only so much of the allowance that is not attributable to area variable housing costs.
Special pay or incentive pay, allowances for clothing or family separation, and reimbursed expenses related to the parent’s assignment to a high cost of living location shall not be considered income for the purpose of determining gross income, except as determined by you.
O.C.G.A. § 19-6-15(f)(1)(E)
23.330 Exclusions from Income (Cite only those supported by evidence.)
In your computation of income, do not include any of the following:
a) child support payments received by either parent for the benefit of a child of another relationship; b) benefits received from means-tested public assistance programs such as, but
not limited to:
Child Support Updated August 2020
1) PeachCare for Kids program, Temporary Assistance for Needy Families (TANF), or similar programs in other states or territories under Title IV- A of the federal Social Security Act;
2) food stamps or the value of food assistance provided by way of electronic benefits transfer procedures by the Department of Human Services;
3) supplemental security income received under Title XVI of the federal Social Security Act;
4) benefits received under Section 402(d) of the federal Social Security Act for disabled adult children of deceased disabled workers; and
5) low-income heating and energy assistance program payments;
c) foster care payments paid by the Department of Human Services or a licensed child placing agency for providing foster care to a foster child in the custody
of the Department of Human Services;
d) anonparent custodian’s gross income. A nonparent custodian is an individual who has been granted legal custody of a child or an individual who has a
legal right to seek, modify, or enforce a child support order;
e) benefits received under Title IV-B or IV-E of the federal Social Security Act
and state funding associated therewith for adoption assistance.
O.C.G.A. § 19-6-15(f)(2)
23.340 Imputed Income
If a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to pay child support or ability to pay child support in prior years, and you the jury find that you have no other reliable evidence of the parent’s income or income potential then gross income for the current year may be imputed. (When imputing income, the court shall take into account the specific circumstances of the parent to the extent known, including such factors as the parent’s assets, residence, employment and earnings history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, and
record of seeking work, as well as the local job market, the availability of employers
6 Updated August 2020 Child Support
willing to hire the parent, prevailing earnings level in the local community, and other relevant background factors in the case. If a parent is incarcerated, the court or the jury shall not assume an ability for earning capacity based upon pre-incarceration wages or other employment related income, but income may be imputed based upon the actual
income and assets available to such incarcerated parent.) O.C.G.A. § 19-6-15(f)(4)(A) (See 02.160, Failure to Produce Evidence.) O.C.G.A. § 24-14-22
Modification (O.C.G.A § 19-6-15(f)(4)(B))
23.350 Underemployment (Note: A determination of willful or voluntary unemployment or underemployment shall not
be made when an individual’s incarceration prevents employment.)
In determining whether a party is willfully or voluntarily (unemployed) (underemployed) you shall ascertain the reasons for the parent’s occupational choices and assess the reasonableness of these choices in light of the parent’s responsibility to support his/her
child(ren).
A determination of willful or voluntary (unemployment) (underemployment) shall not be limited to occupational choices motivated only by an intent to avoid or reduce the payment of child support but can be based on any intentional choice or act that affects a parent’s income.
In determining the issue of willful or voluntary (unemployment) (underemployment), you may examine whether there is a substantial likelihood that the party could, with
reasonable effort, apply his/her education, skills, or training to produce income.
O.C.G.A. § 19-6-15(f)(4)(D)
23.352 Underemployment; Factors Specific factors for you to consider when determining whether a parent is willfully or voluntarily (unemployed) (underemployed) include, but are not limited to, (Tailor to the
evidence)
Child Support Updated August 2020 7
1) 2) 3)
4)
5) 6)
23.355
the parent’s past and present employment;
the parent’s education and training;
whether (unemployment) (underemployment) for the purpose of pursuing additional training or education is reasonable in light of the parent’s responsibility to support his/ her child and, to this end, whether the training or education may ultimately benefit the child by increasing the parent’s level of support for that child in the future;
a parent’s ownership of valuable assets and resources, such as an expensive home or automobile, that appear inappropriate or unreasonable for the income claimed by the parent;
the parent’s own health and ability to work outside the home; and
the parent’s role as caretaker of a child of that parent, a disabled or seriously ill child of that parent, a disabled or seriously ill adult child of that parent, or any other disabled or seriously ill relative for whom that parent has assumed the role of caretaker, which eliminates or substantially reduces the parent’s ability to work outside the home, and the need for the parent to continue the role of caretaker in the
future. (See 23.255, Caretaker; Explained.)
Caretaker; Explained
When considering the income potential of a parent whose work experience is limited due to
the caretaker role of that parent, you shall consider all the facts and circumstances of the
case, including but not limited to the following factors:
1)
2)
3) 4)
whether the parent acted as a full-time caretaker (immediately prior to separation by the parties to this action) (prior to the divorce or annulment of the marriage or dissolution of another relationship in which the parent was a full-time caretaker); the length of time the parent staying at home has remained out of the workforce for this purpose;
the parent’s education, training, and ability to work; and
whether the parent is caring for a child who is four years of age or younger.
O.C.G.A. § 19-6-15(f)(4)(D)
Updated August 2020 Child Support
23.357 Underemployment; Imputed Income
After considering all the evidence if you find that a parent is willfully or voluntarily (unemployed) (underemployed) then child support shall be calculated based on a determination of earning capacity, as evidenced by educational level or previous work
experience. You will establish the parent’s monthly earning capacity in your verdict. O.C.G.A. § 19-6-15(f)(4)(D)(vi) IV)
If you have no reliable evidence of income or income potential of a party, you may determine that party’s gross income by imputing gross income as provided for in O.C.G.A. § 19-6-15(f)(4)(A).
O.C.G.A. § 19-6-15(f)(4)(D) (See 23.340, Imputed Income)
23.359 Underemployment; Not for Armed Services You may not make a determination of willful and voluntary (unemployment) (underemployment) when an individual is activated from the National Guard or other armed
forces unit or enlists or is drafted for full-time service in the armed forces of the United States.
O.C.G.A. § 19-6-15(f)(4)(D)
23.450 Verdict Whatever your verdict is as to gross income, it should be unanimous and entered in writing on the verdict form that has been provided to you.
(The jury determines by verdict form each parent’s gross monthly income.)
(Based upon the jury’s verdict as to gross income, the court shall then determine the presumptive amount of child support in accordance with the provisions of Title 19, taking into account any adjustments to gross income per O.C.G.A. § 19-6-15(c)(5) and § 19-6- 15(h)).
23.500 Deviation (If deviation(s) is/are an issue, the judge must report the presumptive amount of child
support to the jury and identify the custodial parent and the noncustodial parent to the jury
Child Support Updated August 2020
and announce each party’s pro rata share of the child support obligation. Then the court shall charge the jury concerning the law as it relates to deviations. The jury shall return a special interrogatory as to deviations.)
The presumptive amount of child support required to support this (these) child(ren) is
($ ) to be paid to the custodial parent. However, the presumptive amount of child support is rebuttable, and you may deviate from the presumptive amount of child support
only if, and to the extent, authorized by the provisions that follow.
23.510 Deviation; Defined A deviation is an increase or decrease from the presumptive amount of child support if the
presumed obligation is rebutted by evidence.
O.C.G.A. § 19-6-15(a)(10)
23.515 Deviation; When Authorized/Prohibited
The primary consideration for you in considering deviations shall be the best interest of the child(ren) for whom support is being determined. It is the policy of this state to afford to children of unmarried parents, to the extent possible, the same economic standard of living
enjoyed by children living in intact families consisting of parents with similar financial means. O.C.G.A. § 19-6-15(c)(1)
Therefore, you may only deviate from the presumptive amount of child support calculated if you find such deviation is reasonably necessary to provide for the needs of the
child(ren) for whom child support is being determined. O.C.G.A. § 19-6-15()(1)(A) O.C.G.A. § 19-6-15(4)(B)Gii)dD)
You may not deviate in the presumptive amount of child support if such deviation will seriously impair the ability of the custodial parent to maintain minimally adequate housing, food, and clothing for the child(ren) being supported by the child support order and
to provide other basic necessities as you may determine.
O.C.G.A. § 19-6-1560) (1)(C)
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If you determine that a deviation from the presumptive amount of child support is appropriate, you shall consider all available income of the parents.
There are several categories that qualify as specific deviations from the presumptive amount of child support which you may consider. Depending on the evidence presented, you may find that more than one specific deviation applies, or you may find that no deviations apply. You may apply specific deviations from the presumptive amount if you find it to be
in the best interest of the child. O.C.G.A. § 19-6-15(4)(2)
(You may find that a deviation from the presumptive amount of child support is appropriate for reasons in addition to the specific deviations; this is a nonspecific deviation. You may apply nonspecific deviations from the presumptive amount if you find it to be in
the best interest of the child). O.C.G.A. § 19-6-15(4)
(Note: Charge only those that apply.)
23.520 Deviation; Nonparent Custodian’s Income
A nonparent custodian’s expenses may be the basis for a deviation.
O.C.G.A. § 19-6-15(1)(1)(a)
23.530 High Income Parents are considered to be high-income parents if their combined adjusted income exceeds $30,000 per month. For high-income parents, the court has set the basic support obligation at
the highest amount allowed by the child support guidelines, which is , but you may
consider an upward deviation to attain an appropriate award of child support for high-
income parents which is consistent with the best interests of the child.
O.C.G.A. § 19-6-15(4)(2)(A)
Child Support Updated August 2020 11
23.535 Low Income
If the noncustodial parent requests a low-income deviation, and such parent presents evidence sufficient to demonstrate no earning capacity or that his/her pro rata share of the presumptive amount of child support would create an extreme economic hardship for such parent, you may consider a low income deviation. (A noncustodial parent whose sole source of income is supplemental security income received under Title XVI of the federal Social Security Act shall be considered to have no earning capacity.)
In considering the noncustodial parent’s request for a low-income deviation you shall then examine all attributable and excluded sources of income, assets, and benefits and all reasonable expenses of the noncustodial parent. You shall ensure that such expenses are actually paid by the noncustodial parent and are clearly justified expenses. Then you shall weigh the relative hardship that a reduction in the amount of child support paid to the custodial parent would have on the custodial parent’s household, the needs of each parent, the needs of the child(ren) for whom child support is being determined, and the ability of the noncustodial parent to pay child support.
Upon review of the noncustodial parent’s gross income and expenses, and taking into account each parent’s adjusted child support obligation and the relative hardships on the parents and the child(ren), you may consider a downward deviation to attain an appropriate award of child support which is consistent with the best interest of the child(ren).
For the purpose of calculating a low-income deviation, the noncustodial parent’s minimum child support for one child shall be no less than $100.00 per month, (and such amount shall be increased by at least $50.00 for each additional child for whom child support is being determined).
(If a low-income deviations is granted by you, such deviation shall not prohibit you from granting an increase or decrease to the presumptive amount of child support by the use
of any other specific or nonspecific deviation).
O.C.G.A. § 19-6-15 (i)(2)(B)
12 Updated August 2020 Child Support
23.540 Other Health Related Insurance If you find that either parent has vision or dental insurance available at a reasonable cost for the child, you may deviate from the presumptive amount of child support for the cost of such
insurance.
O.C.G.A. § 19-6-15(i)(2)(C)
23.545 Life Insurance
If you find that either parent has purchased life insurance on the life of either parent or the lives of both parents for the benefit of the child, you may deviate from the presumptive amount of child support for the cost of such insurance.
O.C.G.A. § § 19-6-15(i)(2)(D), 19-6-34
23.550 Child and Dependent Care Tax Credit If you find that one of the parents is entitled to the Child and Dependent Care Tax Credit, you may deviate from the presumptive amount of child support in consideration of such
credit. O.C.G.A. § 19-6-15(i)(2)(E)
(Note: The Child and Dependent Care Tax Credit is not the same as the Child Tax Credit.)
23.555 Travel Expense
If you determine that travel expenses related to visitation are substantial, due to the distance between the parents, you may allocate such costs by deviation from the presumptive amount of child support, taking into consideration the circumstances of the respective parents as well as which parent moved and the reason for such move. You must make a written
finding.
O.C.G.A. § 19-6-15(i)(2)(F)
23.560 Alimony
Child Support Updated August 2020 13
Actual payment of alimony shall not be considered as a deduction from gross income but
may be considered as a deviation from the presumptive amount of child support.
O.C.G.A. § 19-6-15(1)(2)(G)
23.565 Mortgage
If the noncustodial parent is providing shelter, such as paying the mortgage of the home or has provided a home at no cost to the custodial parent in which the child resides, you may allocate such costs or an amount equivalent to such costs by deviation from the presumptive amount of child support, taking into consideration the circumstances of the respective
parents and the best interests of the child.
O.C.G.A. § 19-6-15(4)(2)(H)
23.570 DFCS Permanency Plan
Under Georgia law, in cases in which the child is in the legal custody of the Department of Human Services, the child protection or foster-care agency of another state or territory, or any other child-caring entity, public or private, you may consider a deviation from the presumptive amount of child support if the deviation will assist in accomplishing a permanency plan or foster-care plan for the child that has a goal of returning the child to the parent or parents and the parent’s need to establish an adequate household or to otherwise adequately prepare himself/herself for the return of the child clearly justifies a deviation for
this purpose.
O.C.G.A. § 19-6-1520
23.575 Extraordinary Expense; Generally
The presumptive amount of child support that I have provided to you is based upon average child-rearing expenditures for families given the parents’ combined adjusted income and the number of children. Georgia law allows you to deviate from this amount in recognition of extraordinary expenses. Extraordinary expenses are expenses in excess of average amounts used to arrive at the presumptive child support amount and are highly variable among
families. Extraordinary expenses shall be considered on a case-by-case basis in the
14 Updated August 2020 Child Support
calculation of support and may form the basis for deviation from the presumptive amount of child support so that the actual amount of the expense is considered in the calculation of the final child support order for those families actually incurring the expense. Extraordinary expenses shall be prorated between the parents by assigning or deducting credit for actual
payment for extraordinary expenses.
23.577 Extraordinary Expense; Education
You may consider extraordinary educational expenses as a basis for deviation from the presumptive amount of child support. Extraordinary educational expenses include, but are not limited to, tuition, room and board, lab fees, books, fees, and other reasonable and necessary expenses associated with special-needs education or private elementary and secondary schooling that are appropriate to the parent’s financial abilities and to the lifestyle of the child(ren) if the parents and the child(ren)were living together. In determining the amount of deviation for extraordinary educational expenses, scholarships, grants, stipends, and other cost-reducing programs received by or on behalf of the child(ren) shall be considered. If a deviation is allowed for extraordinary educational expenses, a monthly
average of the expenses shall be based on the evidence of prior or anticipated expenses.
O.C.G.A. § 19-6-15(1)(2)(J)@)
23.578 Special Expense Incurred for Child Rearing
You may find special expenses incurred for child rearing to be the basis for deviation from the presumptive child support amount. Special expenses incurred for child rearing include, but are not limited to, quantifiable expense variations related to the food, clothing, and hygiene costs of children at different age levels. Such expenses may include, but are not limited to, summer camp; music or art lessons; travel; school-sponsored extracurricular activities, such as band, clubs, and athletics; and other activities intended to enhance the athletic, social, or cultural development of a child but not otherwise required to be used in calculating the presumptive amount of child support. A portion of the basic child support obligation is intended to cover average amounts of special expenses incurred in the rearing of a child. In order to determine if a deviation for special expenses is warranted, you shall
consider the full amount of the special expenses and when these special expenses exceed 7
Child Support Updated August 2020 15
percent of the basic child support obligation, then the additional amount of special expenses
shall be considered a deviation to cover the full amount of the special expenses.
O.C.G.A. § 19-6-15(4)(2)(J) Gn)
23.579 Extraordinary Expense; Medical In instances of extreme economic hardship involving extraordinary medical expenses not covered by insurance, you may consider a deviation from the presumptive amount of child support for extraordinary medical expenses. Such expenses may include, but are not limited to, extraordinary medical expenses of (the child) (a parent), provided, however, that any such deviation shall not leave a child unsupported. This deviation may be ordered for a specific period of time measured in months.
When extraordinary medical expenses are claimed, you shall consider the resources available for meeting such needs, including sources available from agencies and other
adults.
O.C.G.A. § 19-6-15(1)(2)(J) (ii)
23.580 Extended Parenting Time
The presumptive child support is based upon Georgia law and is based upon expenditures for a child in intact households. You may find a deviation from the presumptive amount of child support when special circumstances make the presumptive amount of child support excessive or inadequate due to extended parenting time or when the child resides with both
parents equally or when visitation rights are not being utilized.
O.C.G.A. § 19-6-15(1)(2)(K)
23.585 Nonspecific Deviations
Deviations from the presumptive amount of child support may be appropriate for reasons other than those previously charged and if you find that such deviation is in the best interest of the child(ren), you may grant such deviation. You must state the reason for any such
deviation and the amount thereof in the appropriate place on the verdict form.
O.C.G.A. §19-6-15(1)(3)
16 Updated August 2020 Child Support
23.590 Verdict; Deviation
Whatever your verdict is as to deviation, it should be unanimous and entered in writing in the place(s) provided on the Deviation Verdict Form that I have provided for you. The Deviation Verdict Form provided for you will include a finding as to the presumptive amount of child support. You may only return a verdict of deviation from that amount if you find that the evidence is sufficient to rebut that amount. You should then give in the space provided the reason(s) you, the jury, deviated and state how the application of the guideline’s presumptive amount would be unjust or inappropriate considering the relative ability of each parent to provide support. You must further state how the best interest of the child(ren) subject to this child support determination is (are) served by the deviation from
the presumptive amount of child support.
O.C.G.A. § 19-6-15(c)(2)(E)
Child Support Updated August 2020 17
23.595 Verdict; Form
IN THE SUPERIOR COURT OF COUNTY STATE OF GEORGIA Plaintiff v. Case No. Defendant SPECIAL VERDICT FORM
CHILD SUPPORT—GROSS INCOME
We, the jury in the above-styled case, find as follows:
1) The plaintiff’s gross monthly income is $
2) The defendant’s gross monthly income is $
This day of , 20
Foreperson (Signature)
Foreperson (Print Name)
18 Updated August 2020 Child Support
IN THE SUPERIOR COURT OF COUNTY
STATE OF GEORGIA Plaintiff v. Case No. Defendant SPECIAL VERDICT FORM CHILD SUPPORT—
DEVIATION FROM THE PRESUMPTIVE AMOUNT OF CHILD SUPPORT
Having been informed by the Court that the custodial parent is and the noncustodial parent is and that the presumptive amount of child support is ;
We find that the deviation(s) (specify the deviation(s) )
(should) (should not) be made to the custodial parent’ s obligation. Said deviation (s) is/are in the best interest of the child(ren) because (state the reason that the deviation is in the child(ren)’s best interest )
We find that the deviation(s) (specify the deviation(s) ) (should) (should not) be made to the noncustodial parent’s obligation. Said deviation (s) is/are in the best interest of the child(ren) because (state the reason that the
deviation is in the child(ren)’s best interest )
This day of , 20
Foreperson (Signature)
Foreperson (Print Name)
Child Support Updated August 2020 19
23.700 Modification or Initial Determination of Child Support—Parties Never Married
(Note: O.C.G.A. § 19-6-15[k][1] provides that a parent may not “ . . . petition for modification of the child support award . . . unless there is a substantial change in either parent’s income and financial status or the needs of the child” [emphasis added]. There are other time-period provisions. O.C.G.A. § 19-6-15[k][4] provides that when a petition for modification comes before a jury, the members “... shall only be responsible for determining a parent’s gross income and any deviations. . . .” [emphasis added]. Thus, it appears that the issue of comparison to prior awards and determining the issue of “substantial change” and the issues from O.C.G.A. § 19-6-15[k][2] are left as court decisions after the jury has determined new income and deviations.
(Recommence with 23.000 et seq., Child Support.)
(Conclusion charges for first and second phases: )
02.520 Verdict in Writing 02.530 Court Has No Interest in Case 02.550 Sympathy 02.560 Alternate Jurors 02.700 Verdict (Hung Jury) 23.701 Modification or Initial Determination of Child Support—Parties Never
Married; Preliminary Instruction
Members of the jury, the case you are about to try is styled ____ v.. You will be deciding the income and financial status of the parties and the needs of the child(ren). Under our system, it is my duty as the trial judge to determine the law applicable to this case, and it is your duty, as the jury, to determine the facts of the case. It is also your duty to apply the law to those facts in reaching your verdict.
The facts are determined by you from the evidence. The evidence consists of two things: testimony and exhibits. The testimony is that testimony that you will hear under oath
from the witness(es). Exhibits are documents or photos or other items that have been
20 Updated August 2020 Child Support
admitted into evidence. You will then have those exhibits with you in the jury room for your use during your deliberations.
I caution you that what the lawyers say during this trial is not evidence. Nothing they say in their opening statements or their arguments or at any time during this trial is evidence, nor is anything I might do or say evidence in this case. I have no leanings in this case whatsoever.
(At the beginning of the trial, you will also be given various forms such as financial affidavits and child support calculation schedules of either or both parties. I further instruct you that these forms are not evidence but are the contentions of the parties in the format required by law. These forms are not to be considered by you as evidence until, and unless and to the extent that, they are supported by admissible evidence, such as by testimony or by other admitted exhibits [or unless the figures of both parties coincide, in which case you may choose to take it as a stipulation of fact]. You will later be required to fill out similar blank forms that will be used to calculate child support.)
My interest in this case is to see that the case is tried fairly as to both parties and to see that it is tried according to the laws of the State of Georgia and according to the constitutions of this state and of the United States.
(Refer to the following charges from Preliminary General Instructions as
appropriate. ) 00.030 Parties (Optional) 00.050 Credibility of Witnesses 00.070 Rules of Evidence 00.090 Note-Taking by Jurors 23.705 Modification or Initial Determination of Child Support—Parties Never
Married; Final Instruction (Instructions to be given at conclusion of Child Support Modification Trial: )
You have been considering the case of (enter name of plaintiff), as plaintiff, v. (enter name
of defendant), as defendant, Civil Action No. (enter number). You will be deciding issues of
the income and financial status of (the parties) and the needs of the
child(ren). Each party has the burden of proof as to their contentions as to their own and the
Child Support Updated August 2020 21
other’s income and financial status (and the financial needs of the child[ren]). The party (parties) with the burden of proof must prove his or her (their) case by a preponderance of the evidence.
(Refer to the following charges from General Civil Instructions as appropriate: )
02.100 Evidence, Generally
02.110 Evidence, Direct or Circumstantial
02.120 Expert Witnesses
02.121 Expert Witness; Fair Market Value; Comparable Sales (See 14.200 et seq., Condemnation; Fair Market Value.)
02.130 Credibility of Witnesses
02.150 Witness, Attacked (Old Impeached)
02.160 Failure to Produce Evidence
02.161 Failure to Produce Witnesses; Generally
(Recommence with 23.000 et seq., Child Support.)
(Conclusion charges for first and second phases: )
02.520 Verdict in Writing
02.530 Court Has No Interest in Case 02.550 Sympathy
02.560 Alternate Jurors
02.700 Verdict (Hung Jury)
22 Updated August 2020 Child Support
24.000 EMPLOYER AND EMPLOYEE
24.010 Employer, Duties of; Generally (Charge only such parts of this section as apply to the facts before the court.)
The employer is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency. The employer shall use like care in furnishing machinery equal to that in general use and reasonably safe for all persons who operate it with ordinary care. If there are hidden defects in machinery or dangers involved with an employment unknown to the employee of which the employer knows or ought to
know, the employer shall give the employee warning.
O.C.G.A. §34-7-20 Central of Georgia Railway Co. v. Ray, 129 Ga. 349 (1907)
24.020 Employer, Selection and Retention of Employees
To entitle the employee to recover on the ground that the employer negligently employed an incompetent fellow employee, it must be shown not only that the fellow employee was in fact incompetent but that the employer knew or, in the exercise of due care, should have known this at the time of the employment, or else that the employer negligently retained the fellow employee under circumstances that would warrant a finding that the employer knew or should have known of such incompetency. The degree of care required of the employer in
these respects is ordinary care.
Gunn v. Willingham, 111 Ga. 427 (1900); distinguished at 124 Ga. 576 (1906) Strickland v. Foughner, 63 Ga. App. 805, 808 (1940)
24.030 Employer, Place to Work; Generally
An employer is bound to exercise ordinary care in furnishing a reasonably safe place for employees to work. If there are hidden dangers involved with an employment unknown to the employee or that the employer knows or, in the exercise of ordinary care, should know, the employee must be warned about them. But if there are hidden defects involved with the
employment of which the employer does not know and could not know by the exercise of
ordinary care, the employer will be excused for a failure to discover them and will not be
liable because of them.
Holland v. McRae Oil and Fertilizer Co., 134 Ga. 678(8) (1910)
24.040 Employer, Place to Work; Changing Conditions
The general rule of law declaring the duty of an employer in regard to furnishing an employee a safe place to work is usually applied to a permanent place. It does not apply to places that are constantly shifting and being transformed as a direct result of the employee’s labor and where the work’s progress necessarily changes the character of safety of the place
in which it is performed.
Holland v. Durham Coal & Coke Co., 131 Ga. 715(1) (1908) Norris v. American Railway Express Co., 156 Ga. 150, 154 (1923)
24.050 Employer, Presumption of Ordinary Care
The presumption exists that the employer exercised ordinary care in the selection of employees. One who complains of injuries that one alleges resulted from the incompetency of a fellow employee must overcome this presumption by direct proof and cannot successfully rebut the presumption by inferences drawn from facts that fail to disclose that
the employer knew, or should have known, of the incompetency of the fellow employee.
Kilgo v. Rome Soil Pipe Mfg. Co., 16 Ga. App. 737(3) (1915) Atlanta, Birmingham and Atlantic Ry. Co. v. Smith, 23 Ga. App. 198 (1919)
24.060 Employer, Duty to Warn Employee If there are dangers involved in an employment unknown to the employee of which the employer knows or, in the exercise of ordinary care should have known, the employer must
warn the employee of such dangers.
Southern Cotton Oil Co. v. Horton, 22 Ga. App. 155(4) (1918)
2 Employer and Employee
24.070 Employee, Duty of; Fellow Employees If an employee should have equal opportunity of discovering incompetency on the part of a fellow employee or, in the exercise of ordinary care, should have known it, the employee
cannot recover for injuries resulting from such incompetency.
O.C.G.A. §34-7-23
24.080 Employee, Machinery
In order for an employee to recover damages from an employer for injuries received from the employer’s machinery, it must be shown by the evidence that the employer knew of the defect or danger in the machinery or could have discovered it by the exercise of ordinary care and that the employee did not know of the defect or danger and did not have equal
means with the employer of discovering the danger.
O.C.G.A. §34-7-23 Barrow County Cotton Mills v. Farr, 33 Ga. App. 730 (1925) Abercrombie v. Ivey, 59 Ga. App. 296 (1938)
24.090 Employee, Place to Work
If there are hidden defects at the place of employment of which the employer does not know and the employee has equal means with the employer of knowing the condition and circumstances of the place of employment, the employee cannot recover for injuries suffered
on account of such defects in the place of employment.
City Council of Augusta v. Owens, 111 Ga. 464(5) (1900); distinguished at 41 Ga. App. 746 (1930) Southern Bauxite Co. v. Fuller, 116 Ga. 695, 698 (1902)
24.100 Employee, Assumption of Risk An employee assumes the ordinary risks of employment and is bound to exercise skill and care to protect against these risks. The assumed risks are those usually and reasonably
involved in the work.
Employer and Employee 3
O.C.G.A. §34-7-23 East Tennessee Railway Co. v. Perkins, 88 Ga. 1 (1891) Williams v. Garbutt Lumber Co., 132 Ga. 221, 232 (1909)
24.110 Employee, Children, Diligence Required of Due care by a child of tender years is such as the child’s mental and physical capacities enable him/her to exercise in the actual circumstances of the occasion and situation under investigation. Therefore, the duty of a child with respect to risk involved in employment is to exercise due care according to the child’s age and actual capacity.
O.C.G.A. §51-1-5
Moore v. Ross, 41 Ga. App. 509(3) (1930)
Gordon v. Batayias, 53 Ga. App. 538, 539 (1936)
24.200 Employee, Railroad Employees; Generally
The employee assumes such risks as are normally and reasonably involved in the occupation and is not held to have assumed such risks as are unusual and not necessarily involved in the employment of which the employee did not know and by the exercise of ordinary care for his/her own safety could not have known and concerning which the employee did not have
equal means with the employer of knowing.
Emanuel v. Georgia and Florida Ry. Co., 142 Ga. 543, 547 (1914)
24.210 Employee, Railroad Employees; Federal Employer’s Liability Act
If a suit should be brought under the Federal Employer’s Liability Act, and it should not be shown that injury or death resulted from a violation of a federal statute for the protection of the employees, the doctrine of assumed risk would apply. No presumption of negligence against the employer would exist, since under those circumstances the employee would be
held to have assumed the usual and ordinary risks incident to employment.
Gray v. Garrison, 49 Ga. App. 472 (1934); distinguished at 57 Ga. App. 350 (1938)
4 Employer and Employee
24.220 Employee, Railroad Employees; Statutory Violations by Railroad
If an action should be brought against a common carrier railroad that is to recover damages for injuries to or the death of an employee, such employee shall not be held to have assumed risks of employment in any case in which the violation by the common carrier of any statute
enacted for the safety of the employees contributed to the injury or death of the employee.
O.C.G.A. §34-7-43 Southern Railway Co. v. Perkins, 33 Ga. App. 504(2) (1925)
24.230 Employee, Railroad Employees; Comparative Negligence Rule Applies In an action brought against a common carrier, which is a railroad, to recover damages for personal injuries to, or the death of, an employee, the fact that the employee may have been guilty of contributory negligence will not bar a recovery, unless the contributory negligence of the employee amounted to a failure to exercise ordinary care for his/her own safety. If it amounted to such failure or was equal to or greater than the negligence of the employer, no recovery can be had. If it did not amount to such failure and was less than the negligence of the employer, a recovery may be had, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee, provided no such injured employee shall be held contributorily negligent in any case in which a violation by the common carrier of any statute enacted for the safety of employees contributed to the
death or injury of such employee.
O.C.G.A. §34-7-42
24.240 Employee, Railroad Employees; Care for Own Safety
The rule of law that an employee assumes the ordinary risks of employment makes it the employee’s duty to exercise the skill and care to protect against such risks. This rule applies to a common carrier, which is a railroad, as well as to other employers. To recover because
of alleged act of negligence on the part of the employer it must appear that
1) the employer was negligent,
2) the employee did not know of the negligence,
Employer and Employee 5
3) the employee did not have equal means with the employer of knowing of the negligence, and 4) by the exercise of ordinary care, the employee could not have known of the
negligence.
Hightower v. Southern Railway Co., 146 Ga. 279 (1916) Brady v. Bugg, 38 Ga. App. 48, 49 (1928)
Employer and Employee
26.000 FRAUD AND DECEIT
26.010 Fraud and Deceit; Definitions; Presumption and Proof (Note: Constructive fraud is an equitable doctrine only and will not support an action for money damages. In order to support an action for damages, a misrepresentation must be made either knowingly or with reckless disregard for the consequences. See Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185 (1994). See Consolidated American Insurance Company v. Spears, 218 Ga. App. 478 (1995).)
A person commits fraud when that person makes a misrepresentation that is
intended to deceive and that does deceive. Thompson v. Wilkins, 143 Ga. App. 739 (1977)
[Fraud may be actual or constructive. Actual fraud consists of any method by which another is deceived. Constructive fraud consists of any act done (or not done that should have been done) contrary to legal or equitable duty, trust, or confidence upon which another person relies to the injury of that person. Actual fraud implies moral guilt, while constructive fraud may be consistent with innocence.] (Give bracketed paragraph only when constructive fraud is alleged.)
Fraud may not be presumed, but slight circumstances may be enough to prove its
existence. To prove fraud, the following elements are required:
1) a false representation,
2) intent to deceive,
3) an intention to induce the plaintiff to act or refrain from acting in reliance on the false representation,
4) justifiable reliance by the plaintiff on the false representation, and
5) damage to the plaintiff.
O.C.G.A. §§23-2-51, 23-2-57
Marriott Corp. v. American Academy of Psychotherapists Inc., 157 Ga. App. 497, 499 (1981)
City Dodge v. Gardner, 232 Ga. 766, 769-770, fn.1 (1974)
Kodadek v. Lieberman, 247 Ga. App. 606 (2001)
26.020 Fraud and Deceit; Contracts, Effect on
Fraud renders contracts voidable at the choice of the injured party.
O.C.G.A. §13-5-5
26.030 Fraud and Deceit; Diligence Required of Plaintiff
Before a person is entitled to relief on the ground of fraud, deceit, or misrepresentation, it must appear that the person used ordinary care to find out the facts and protect against loss, unless a confidential relationship existed between the parties.
(The remainder of the charge should only be given if applicable to the facts.)
When one person is placed in such relationship to another that they both become interested in any subject or property, they are prohibited from acquiring rights in that subject or property in conflict with each other.
Any relations shall be considered confidential when one party is so situated as to exercise a controlling influence over the will, conduct, or interest of another or when from
such relation of mutual confidence the law requires utmost good faith.
O.C.G.A. §§23-2-58, 23-2-59
Skinner v. Melton, 84 Ga. App. 98 (1951)
Scott v. Fulton National Bank, 92 Ga. App. 741 (1955); and other cases cited to note “diligence” following O.C.G.A. §51-6-2
26.040 Fraud and Deceit; Misrepresentation and Concealment Misrepresentation of a material fact, if acted on by the opposite party, constitutes legal fraud, whether the misrepresentation was intentional or not.
(Do not give the above without researching this issue. See Lawyers Title Insurance Corporation v. New Freedom Mortgage Corporation, 285 Ga. App. 22, 645 S.E. 2d 536 (2007).)
If there is a willful misrepresentation of a material fact, which was made to induce another person to act and causes that person to act and the person is injured, then the person who is injured has a right of action. Mere concealment of a fact, unless done in a manner to
deceive and mislead, will not support an action.
In all cases of deceit, knowledge of the falsehood constitutes an essential element. However, fraudulent or reckless misrepresentation of facts as true, which the party may not
know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.
O.C.G.A. §23-2-52
Jordan v. Belvin, 57 Ga. App. 719, 723 (1938)
First of Georgia Co. v. Maddox, 217 Ga. 416, 417 (1961) Kodadek v. Leiberman, 247 Ga. App. 606 (2001)
26.050 Fraud and Deceit; Rescission and Restitution; Generally A contract may be rescinded at the instance of the party defrauded, but in order to rescind, the person seeking to rescind must promptly, upon discovery of the fraud, return whatever that person has received by virtue of the contract, if it is of any value.
Exceptions to the requirement of return exist when the party is entitled to keep the consideration because of damages already sustained because of the fraud, the defrauding party has made restoration impossible, or when restoration would be unreasonable.
Reasonableness is a question for you, the jury, to decide.
O.C.G.A. §13-4-60
Hooper v. Weathers, 175 Ga. 133 (1932)
Cohron v. Woodland Hills Co., 164 Ga. 581 (1927)
Farnell v. Brady, 159 Ga. 209 (1924)
Orion Capital Partners LP v. Westinghouse Elec. Corp., 223 Ga. App. 539 (1996)
26.100 Fraud and Deceit; Goods, Sale of; Generally
When a buyer of personal property makes a material representation that is false and the seller relies upon the misrepresentation and delivers possession of goods, such a misrepresentation amounts to a fraud in law and voids the sale. Equity may then rescind the contract and restore the parties to their original positions, even though the party making such
misrepresentation was not aware that the statement was false.
Newman v. Claflin, 107 Ga. 89 (1899)
26.110 Fraud and Deceit; Goods, Sale of; Trover In a contract of sale of personalty, if there was a simple warranty, title would pass. If there was a fraudulent representation that induced the plaintiff to act to the injury, title would not
pass. The injured party could then treat the contract as rescinded and proceed to recover the property.
Johnson v. Harley, 121 Ga. 83 (1904)
Barnett v. Spier, 93 Ga. 762 (1894)
26.200 Fraud and Deceit; Releases
If a release is obtained by fraud, it is void and has no effect. However, a person, who for a valuable consideration has released another from all further liability cannot obtain a rescission of such contract of release and recover upon the original cause of action without
first restoring or offering to restore what was received for such release.
Harley v. Riverside Mills, 129 Ga. 214 (1907) Western & Atlantic Railroad Co. v. Atkins, 141 Ga. 743 (1914) Mack v. Shearer, 222 Ga. 33 (1966)
26.300 Fraud and Deceit; Lands, Sale of In a sale of lands, when the quantity is specified as “more or less,” it is your duty to determine whether the deficiency is so gross as to justify the suspicion of willful deception or mistake amounting to fraud. If you find that fraud does exist, you would find in favor of (depending on the relief sought by plaintiff) either a rescission of the sale or an apportionment of the price according to relative value.
Fraud that avoids a sale of lands may be legal as well as moral. Misrepresentations made by one party with the intent to deceive the other or that actually deceive the other party, however innocent, may constitute fraud. Such misrepresentations may be by acts as
well as words.
O.C.G.A. §44-5-35 James v. Elliott, 44 Ga. 237 (1871) Powell v. Fowler, 138 Ga. 397 (1912)
Johnson v. Dooly, 72 Ga. 297 (1884)
26.400 Fraud and Deceit; Goods, Sale of; Generally (Commercial Code) (For applicability of this charge, see definition of goods in O.C.G.A. §11-2-105.)
When there is a claim of material misrepresentation of fraud about a sale of goods, the defrauded party is entitled to an appropriate remedy. The right of the defrauded party to void the contract of sale or return the goods does not prevent the defrauded party from
making a claim for damages or pursuing other remedies under the law. O.C.G.A. §11-2-721
(Note: The entire Part 7 [O.C.G.A. §11-2-701 et seq.] of the article on sales [0.C.G.A. $11-2101 et seq.] deals with remedies of parties in cases involving sales of goods, and it will be necessary to apply whatever part of the law applies to the factual situation in any given case. The most likely code sections to be used will be those relating to incidental or consequential damages to the buyer [O.C.G.A. §11-2-715] or seller [O.C.G.A. §11-2-710], which are set out as the following two charges. For certain equitable relief in
cases of misrepresentation or fraud, see 16.220 Contracts; Accident and Mistake.)
26.500 Fraud and Deceit; Damages; Generally (Commercial Code)
Fraud ordinarily gives the injured party the right to rescind (that is, void the contract) or to affirm the contract and sue for damages, provided that the buyer has notified the seller within a reasonable time after discovering the fraud. You would determine whether the plaintiff gave the defendant proper legal notice, and if so, you would then determine if there
should be a recovery and what the amount of the recovery should be.
O.C.G.A. §§11-2-607, 11-2-714 Barfield v. Farkas, 40 Ga. App. 559 (1929) Wright v. Ziegler, 70 Ga. 501(5) (1883)
26.510 Fraud and Deceit; Buyer’s Incidental and Consequential Damages (Commercial Code) (See 26.511—26.520.)
26.511 Fraud and Deceit; Buyer’s Incidental Damages
Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation, and care and custody of goods rightfully rejected and commercially reasonable charges, expenses, or commissions in connection with effecting
cover and any other reasonable expense incident to the delay or other breach.
26.512 Fraud and Deceit; Buyer’s Consequential Damages
Consequential damages resulting from the seller’s breach include
1) any loss resulting from general or particular requirements and needs of which the seller at the time of the contracting had reason to know and which could not reasonably be prevented by cover or otherwise, and
2) injury to person or property proximately resulting from any breach of warranty.
“Cover,” for the purpose of this lawsuit, means the right of the buyer, in good faith and without unreasonable delay, to buy or contract to buy goods that are a reasonable substitute for those claimed to be due from the seller. The measure of damages is the difference between the cost of the substitution purchase and the contract price, together with
any incidental or consequential damages as they have been defined to you.
O.C.G.A. §§11-2-712, 11-2-715
26.520 Fraud and Deceit; Seller’s Incidental Damages (Commercial Code) Incidental damages to a seller include any commercially reasonable charges, expenses, or commissions incurred in stopping delivery; in the transportation, care, and custody of goods after the buyer’s breach; in connection with return or resale of the goods; or otherwise
resulting from the breach.
O.C.G.A. §11-2-710
28.000 GIFTS
28.010 Gifts; Essentials; Acceptance
To constitute a valid gift, there shall be the intention to give by the donor, acceptance by
the donee, and delivery of the article or some act accepted by the law in place of delivery. If the gift is of substantial benefit, the law will presume the acceptance, unless the
contrary is shown. A parent, guardian, or friend may accept for an infant. The officers of
a corporation may accept for the corporation.
O.C.G.A. §§44-5-80, 44-5-81
28.020 Gifts; Personal Property; Delivery; Generally Actual manual delivery of personal property is not essential to the validity of a gift. Any act that indicates a renunciation of possession by the donor, and the transfer of control to the donee, shall be a constructive delivery.
All kinds of personal property that are capable of manual delivery and of which the title, either legal or equitable, can be transferred by delivery may be the subject matter
of a valid gift, whether delivery be actual or constructive.
O.C.G.A. §44-5-82 Underwood v. Underwood, 43 Ga. App. 643 (1931) Brooks v. Brooks, 54 Ga. App. 276 (1936)
28.030 Gifts; Delivery of Personal Property to Third Person; Recovery Delivery, actual or constructive, being essential to a valid gift, if the owner of personal property should deposit it with another who is directed by the owner to deliver it to a third person as a gift from the owner, the owner could at any time before actual delivery to the intended donee and acceptance of the gift by the donee recover the property from
the person with whom it had been deposited for delivery.
Smith v. Peacock, 114 Ga. 691 (1902) Knight v. Jackson, 156 Ga. 165 (1923)
28.040 Gifts; Realty; Gifts from Parent to Child
The exclusive possession by a child of lands which originally belonged to the parent or parents, without payment of rent, for the space of seven years, creates a rebuttable presumption of a gift and conveys title to the child. The presumption may be rebutted by evidence of a loan, of a claim of dominion by the parent or parents acknowledged by the
child, of a disclaimer of title by the child, or similar evidence.
O.C.G.A. §44-5-85
28.050 Gifts; Realty Plus Valuable Improvements
Specific performance of a voluntary agreement or gratuitous promise should not be awarded. If possession of lands has been given under such agreement, upon a valuable consideration and valuable improvement made upon the faith of it, equity will decree the
performance of the agreement.
O.C.G.A. §§23-2-131, 23-2-132 Howell v. Ellsberry, 79 Ga. 475 (1888)
2 Updated July 2015
Gifts
30.000 IMPLIED OBLIGATIONS TO PAY
30.010 Implied Obligations; Generally Ordinarily, when one renders services or transfers property valuable to another, which the other accepts, a promise is implied to pay the reasonable value of it.
(Omit balance of charge unless close family relationship is involved.)
This presumption does not arise in cases between very near relatives.
O.C.G.A. §9-2-7
30.100 Implied Obligations; Usual Practice When one person performs useful services for another with the other’s knowledge for which a charge is usually made, and the other expresses no objection or accepts the service, then a
promise to pay the reasonable value of the service is implied.
Mitcham v. Singleton, 50 Ga. App. 457 (1935) Conway v. Housing Authority, 102 Ga. App. 333, 335 (1960) Puritan Mills Inc. v. Pickering, 152 Ga. App. 309, 310 (1979)
30.200 Implied Obligations; Family Transactions; Generally
The particular facts of each case will determine whether the usual implication of a promise to pay for services accepted is rebutted by the fact of close relationship between the parties. In determining what circumstances are sufficient to imply a promise to pay for services rendered in cases of close relationship, the nature and value of the services rendered and the
physical and financial conditions of the parties should be taken into account.
Wall v. Wall, 15 Ga. App. 156 (1914) Cowsert v. Nunnally, 113 Ga. App. 200, 201 (1966) McRae v. Britton, 144 Ga. App. 340 (1977)
30.210 Implied Obligations; Parent and Child In order to entitle a child to recover against a parent for services rendered in the nature of
care and attention such as are usually bestowed because of a natural sense of duty and
affection arising out of the relationship, it must affirmatively appear that the services rendered were performed under an express contract that the party would pay for the same, or the surrounding circumstances must clearly indicate that it was the intention of both parties that compensation should be made. What circumstances would be sufficient to support an
implication of a promise to pay for such services is a question for the jury to determine.
Edwards v. Smith, 42 Ga. App. 730 (1931) Matthews v. McCorkle, 111 Ga. App. 310, 312 (1965)
30.300 Implied Obligations; Property, Transfer of If one should transfer valuable property to another and the other person should accept the property, the law would imply a promise on the part of the other person to pay the
reasonable value of the property.
Stafford Lumber Co. v. Gordon, 29 Ga. App. 588 (1923) Cary v. Simpson et al., 15 Ga. App. 280(7) (1914)
30.400 Implied Obligations; Money Had and Received An action for money had and received exists in all cases in which another has received money that the plaintiff in equity and good conscience is entitled to recover and that the
defendant is not entitled in good conscience to keep.
Carmichael v. Bayley, 42 Ga. App. 408, 410 (1930) Empire Oil Co. v. Lynch, 106 Ga. App. 42, 43 (1962)
2 Implied Obligations to Pay
32.000 INSURANCE
32.010 Insurance; Misrepresentation; Generally
All statements and descriptions in any application for an insurance policy or annuity contract or in negotiations for them by or in behalf of the insured or annuitant shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and
incorrect statements shall not prevent a recovery under the policy of contract unless
1) itis fraudulent,
2) itis material either to the acceptance of the risk or to the hazard assumed by the insurer,
3) the insurer in good faith would either not have issued the policy or contract or would not have issued a policy or contract in as large an amount or at the premium rate as applied for or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been known to the insurer as required either by the
application for the policy or contract or otherwise.
O.C.G.A. §33-24-7
32.020 Insurance; Misrepresentations, Innocent When there is not clear and unequivocal limitation on the authority of the agent of the insurance company and no fraud or collusion between the agent and the prospective insured, the company is presumed to know any facts that the agent knows amounting to innocent misrepresentations and cannot claim lack of knowledge as a defense.
If there was a misrepresentation in the application for insurance and it was attached to the policy and made a part of it and it was material in that it changed the nature, extent, and character of the risk, it would void the policy even though it was made innocently and in
good faith.
Allstate Insurance Co. v. Anderson, 121 Ga. App. 582 (1970) Public Savings Life Insurance Co. v. Wilder, 123 Ga. App. 754 (1971)
32.030 Insurance; Concealment
The willful concealment in the application for insurance will void a policy.
Prudential Insurance Co. v. Perry, 121 Ga. App. 618 (1970)
32.100 Insurance; Failure to Pay Claim; Bad Faith
If you find that the insurer has exercised bad faith in refusing to pay a claim within sixty days after demand, the insurer shall be liable, in addition to the loss, for a penalty up to 50 percent of the amount of the loss or $5,000, whichever is greater, and all reasonable attorney’s fees. You must determine, first, how much the loss was and, second, how much penalty the plaintiff is entitled to receive. The penalty may be any amount as determined by the jury up to but not exceeding 50 percent of the loss or $5,000, whichever is greater. You must then determine how much the attorney’s fees shall be on the basis of evidence brought before you as to the reasonable value of the services, based on time spent and legal and factual issues involved in accordance with prevailing fees. Your verdict should fix the amount of the loss first and then, if you find that bad faith existed, make separate findings as to penalty (not over 50 percent of the loss or $5,000, whichever is greater) and
attorney’s fees.
(Note: Penalty changed effective 7/1/2001.)
O.C.G.A. §33-4-6 United States Fire Insurance Co. v. Tuck., 115 Ga. App. 562 (1967)
32.200 Insurance; Suicide, Presumption Against The policy provides that suicide, sane or insane, shall be a bar to recovery. Suicide is intentional, not accidental, self-destruction. There is a presumption against suicide that must
be overcome by a preponderance of the evidence.
Belch v. Gulf Life Insurance Co., 219 Ga. 823, 825 (1964) Templeton v. Kennesaw Life Insurance Co., 216 Ga. 770, 773 (1961)
2 Insurance
32.300 Insurable Interest; Life
“Insurable interest” with reference to personal insurance is an interest based upon a reasonable expectation of monetary advantage through the continued life, health, or bodily safety of a person and consequent loss by reason of that person’s death or disability or a substantial interest produced by love and affection in the case of individuals closely related by blood or by law.
Individuals have an unlimited insurable interest in their own life, health, and bodily safety and may lawfully take out a policy of insurance on their own life, health, or bodily safety and have the policy made payable to whomever they please, regardless of whether the designated beneficiary has an insurable interest.
(Use if applicable.)
A corporation has an insurable interest in
a) the life or physical or mental ability of 1) its directors, officers, or employees, or those of its subsidiaries, or any other person whose death or disability might cause it financial loss; or 2) ashareholder, pursuant to a contractual arrangement concerning the reacquisition of shares owned by the shareholder at the time of death or disability or b) the life of the principal obligor pursuant to 1) acontract obligating the corporation as part of compensation arrangements or
2) acontract obligating the corporation as guarantor or surety.
(Use if applicable.)
The trustee of a trust established by a corporation providing life, health, disability, retirement, or similar benefits to employees of the corporation or its affiliates and acting in a fiduciary capacity with respect to such employees, retired employees, or their dependants or beneficiaries has an insurable interest in the lives of employees for whom such benefits are to be provided.
(Use if applicable.)
The insurable interest of a corporation or trustee shall be conveyed automatically to
another corporation or to the trustee of a trust established by such other corporation for its
Insurance 3
sole benefit that has acquired by purchase, merger, or otherwise all or part of the first corporation’s business.
A corporation or the trustee of a trust may exchange any policy of insurance issued to itself or to another corporation or the trustee of a trust established by such other corporation for its sole benefit from which the exchanging corporation has acquired by purchase, merger, or otherwise all or part of such other corporation’s business for a new policy of insurance issued to itself without establishing a new insurable interest at the time
of such exchange. O.C.G.A. §33-24-3(c), (c.1)
(Give in all cases.)
An insurable interest must exist at the time the contract of personal insurance becomes effective, but this requirement need not exist at the time the loss occurs.
Any personal insurance contract procured (caused to be procured) upon another is void unless the benefits are payable to the individual insured or that person’s representative or to a person having, at the time the contract was made, an insurable interest in the individual insured. When a contract is void, the insurer shall not be liable on the contract but
shall be liable to repay to the person(s) who have paid the premiums, without interest.
O.C.G.A. §33-24-3
32.400 Insurable Interest; Property
No insurance contract on property or of any interest in it or arising from it shall be enforceable except for the benefit of persons having, at the time of the loss, an insurable interest in the things insured.
“Insurable interest” as used in this section means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or monetary damage or impairment.
The measure of an insurable interest in property is the extent to which the insured
might be damaged by loss, injury, or impairment of it.
O.C.G.A. §33-24-4
4 Insurance
34.000 INTEREST AND USURY
34.010 Usury; Definition Usury is the reserving and taking or contracting to reserve and take, either directly or
indirectly, a greater sum for the use of money than the interest allowed by law.
O.C.G.A. §7-4-1
34.020 Usury; Intention; Indirect Means
To constitute usury, it is essential that there be, at the time the contract is executed, an intent on the part of the lender to take or charge for the use of money a higher rate of interest than that allowed by law.
If such intent existed at the time the contract was executed, the fact that it was accomplished indirectly, as by way of commission for advances, discount, exchange, or by any contract or scheme or contrivance or device whatever, would not excuse it.
In determining whether such intent existed, you would inspect and analyze the
transaction critically and carefully and consider all of its facts and circumstances.
O.C.G.A. §7-4-2
Bellerby v. Goodwyn, 112 Ga. 306 (1900)
Loganville Banking Co. v. Forrester, 143 Ga. 302 (1915)
Bank of Lumpkin v. Farmers State Bank, 161 Ga. 801 (1926)
Harrison v. Arrendale, 113 Ga. App. 118, 121, 123 (1966); 117 Ga. App. 463 (1968);
on retrial
36.000 LANDLORD AND TENANT
36.010 Landlord and Tenant; Duty of Landlord; Generally The landlord must keep the premises in repair and shall be liable for all substantial
improvements made to them by the landlord’s consent.
O.C.G.A. §44-7-13
36.020 Landlord and Tenant; Duty of Landlord at Time of Rental
It is ordinarily the duty of a landlord to turn over rented property to the tenant in a condition reasonably safe and suited for the tenant’s intended use and free of hidden defects, as the exercise of ordinary care on the part of the landlord might have disclosed. A landlord is liable for injuries resulting to a tenant from defects that were hidden from the tenant and of
which the landlord knew or could have discovered by the exercise of ordinary care.
Elijah A. Brown Co. v. Wilson, 191 Ga. 750 (1941)
36.030 Landlord and Tenant; Duty of Landlord during Rental
A landlord is under no duty to inspect the rented premises in order to keep informed about their condition and cannot be held liable for damages caused from defects in the rented premises occurring after having parted with the possession, unless the landlord has been
notified of the defects and has had a reasonable time in which to make repairs.
Zaban v. Coleman, 27 Ga. App. 376 (1921) Nunnally v. Wheeler, 38 Ga. App. 517 (1928)
36.200 Landlord and Tenant; Liability of Landlord; Generally
The landlord is responsible to others for damages arising from
a) defective construction or b) failure to keep the premises in repair after having notice of a defect and an
opportunity to repair.
However, once the landlord has fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from
negligence or illegal use of the premise by the tenant.
O.C.G.A. §44-7-14 Colquit v. Rowland, 265 Ga. 905 (1995)
36.210 Landlord and Tenant; Liability of Landlord; Patent Defects; Liability to Tenant A landlord is not liable for injuries to the tenant arising from a visible or obvious defect in the premises existing at the time of the lease and of which the tenant knew or had some means of knowing equal to those of the landlord, unless the rent contract states otherwise. Subsequent notice by the tenant of the existence of such a defect would not place
upon the landlord any duty of inspection or repair.
Henley v. Bookman, 124 Ga. 1059(5) (1906) McGee v. Hardacre, 27 Ga. App. 106 (1921) Chamberlain v. Nash, 54 Ga. App. 508, 509 (1936)
36.220 Landlord and Tenant; Liability of Landlord during Rental;
Possession (Partial) by Landlord If a landlord should retain a qualified possession of the rented premises and attends to the supervision of the building, collecting rents, and personally or by an agent makes repairs, the landlord will be liable for an injury resulting from a defective condition of the building if the landlord had actual notice of the defect, or in the exercise of ordinary and reasonable care,
the landlord ought to have known it.
Marr v. Dieter, 27 Ga. App. 711(2) (1921) White v. Thacker, 89 Ga. App. 656, 659 (1954); see also 65 A.L.R. 3d 14 §9 (1975)
2 Landlord and Tenant
36.230 Landlord and Tenant; Liability of Landlord; Latent Defects A landlord is not liable for injuries to the tenant arising from hidden defects unknown to the tenant existing at the time of the lease, unless the landlord actually knew or by the exercise
of ordinary care might have known of their previous existence.
McGee v. Hardacre, 27 Ga. App. 106 (1921); distinguished at 49 Ga. App. 128 (1934) Howell Ga. Co. of Athens Inc. v. Coile, 112 Ga. App. 732, 738 (1965)
36.240 Landlord and Tenant; Liability of Landlord; Repairs during Tenancy If a landlord should undertake to repair the premises, the landlord would be liable to the tenant for their improper repair, unless the tenant knew about the defect in the repairs or, in the exercise of ordinary care for the tenant’s own safety, could have discovered them.
A landlord may be liable for damages resulting from defects of which the landlord had no actual notice if, while making repairs, the landlord could, by the use of ordinary care,
have discovered the defects.
Hill v. Liebman Inc., 53 Ga. App. 462 (1936) Bradshaw v. Crawford, 77 Ga. App. 441, 443 (1948) Zaban v. Coleman, 27 Ga. App. 376 (1921)
36.300 Landlord and Tenant; Duty of Tenant; Notice to Landlord When rented premises become out of repair, it is the duty of the tenant to notify the landlord and to stop using any part of the premises that would be dangerous to use.
After notice to the landlord, the tenant has a right to use those parts of the premises that are apparently in good condition if there is nothing to call attention to what may be a hidden defect. The failure of the landlord to repair in such a case would give the tenant a right of action for any damages sustained by reason of the tenant’s use of that part of the premises that was in apparently sound condition, even though the tenant had knowledge that
there were other parts of the premises in a defective condition.
Miller v. Jones, 31 Ga. App. 318 (1923); distinguished at 49 Ga. App. 128 (1934) and 39 Ga. App. 621 (1929) Beckmann v. Rakoske, 106 Ga. App. 203, 204 (1962)
Landlord and Tenant 3
36.310 Landlord and Tenant; Duty of Tenant; Avoidance of Danger If the tenant has knowledge of the defective condition of the rented premises, and the defect is such that an ordinarily careful person would know that it would be dangerous to use that area, it is the tenant’s duty to stop using that portion of the premises or dangerous area. If the tenant should voluntarily use a portion of the premises known to be defective and dangerous and should be injured, the tenant would be guilty of such contributory negligence as would bar a recovery.
In the use of rented premises, a tenant is required to use ordinary care for his/her own safety, and if in doing so the tenant could have discovered a dangerous condition of the premises, if such dangerous condition existed, and prevented injury, the tenant could not
recover, whether or not the landlord knew of the dangerous condition of the premises.
Finley v. Williams, 45 Ga. App. 863, 864 (1932) Mullinax v. Cook, 115 Ga. App. 201, 205 (1967); distinguished at 152 Ga. App. 782 (1979)
36.400 Landlord and Tenant; Tenants; Privies Members of a tenant’s family, guests, servants, employees, or others present by express or implied invitation are controlled by the rules governing the tenant as to the right of recovery
for injuries arising from failure to keep the premises in repair.
Crossgrove v. Atlantic Coast Line Railroad Co., 30 Ga. App. 462, 464(2) (1923) Rogers v. Columbus Bank and Trust Co., 111 Ga. App. 792 (1965)
36.500 Landlord and Tenant; Tenant, Duty of; Repairs; Setoff against Rent; Damages
The landlord, in the absence of an agreement to the contrary, is bound to keep the premises
in repair. When repairs to the premises are necessary, and the necessity for repairs was not
caused by the negligence of the tenant (or those for whose conduct the tenant is responsible),
and if, after notice that the premises are out of repair, the landlord neglects to repair within a
reasonable time, the tenant has the option of making or not making necessary repairs.
4 Landlord and Tenant
If the tenant chooses to make the repairs, the tenant may recover from the landlord the reasonable expense incurred or may set off the expense (that is, subtract the expense from the rent).
If the tenant chooses to omit to make the repairs, the tenant may then seek compensation in an action for damages.
(Here, instruct on allowable damages.)
Shehane v. Eberhart, 30 Ga. App. 265(3) (1923) Big Apple, etc., Market v. W. J. Milner & Co., 111 Ga. App. 282, 284 (1965)
36.600 Landlord and Tenant; Dispossessory Warrants (Tenants Holding Over) In this proceeding, a property owner is trying to recover possession of rented property and rent from an alleged tenant.
It is your duty to determine whether the property owner is entitled to recover possession of the property under the facts of this case and, if so, the amount of rent, if any, to which the owner is entitled.
(Here, also specify any other claim plaintiff may have.)
If you find that the relationship of landlord/tenant existed between the plaintiff and defendant, that the plaintiff has made proper demand of the defendant to vacate the premises, and that the defendant has refused to vacate the premises after plaintiff s demand to vacate, you would be authorized to find in favor of the plaintiff if you also find that the defendant, as tenant,
(Choose among the following situations applicable to the facts.)
a) holds the property after the tenancy has ended,
b) has failed to pay the rent,
c) is a tenant at will (that is, a person who is renting property from a landlord by their mutual consent, without any period of time of occupation being agreed on),
d) is a tenant at sufferance (that is, a person who comes into possession lawfully but remains in possession without any rights at all).
In the event you should find in favor of the plaintiff, you should include in your verdict any amount of rent that you find to be due.
(Use the following charge only when a tenant claims a setoff or recoupment. )
Landlord and Tenant
A “setoff’ is an opposing claim arising from the rental contract. A “recoupment” is an opposing claim arising from some other cause. Should you find in favor of the plaintiff for monetary damages for rent or otherwise, your verdict should be reduced by any amount that you find the defendant may “set off’ or “recoup” against plaintiff’ s claim.
Should you find in favor of the defendant, as tenant, then the plaintiff, as landlord, shall be liable for all foreseeable damages resulting from the landlord’s wrongful conduct (and for any rights the tenant may have by setoff or recoupment as I have detailed them or
otherwise).
6 Landlord and Tenant
38.000 LIMITATION OF ACTIONS
38.010 Statute of Limitations; Explanation Lawsuits upon claims must be filed within specified periods of time after the claims arise, and if not filed within that time, they are barred by the statute of limitations and no recovery shall be allowed.
(See appropriate section of O.C.G.A. Title 9.)
38.100 Statute of Limitations; Fraud as Affecting Limitations; Generally If the defendant or those it is claimed are guilty of a fraud that prevented or delayed the plaintiff from filing this action, the period of limitation shall run only from the time of the
plaintiff s discovery of the fraud.
O.C.G.A. §9-3-96
38.110 Statute of Limitations; Fraud as Affecting Limitations; Diligence of Plaintiff
In the absence of any confidential relation, fraud that prevents one from maintaining a plea
of the statute of limitations must be actual fraud involving moral turpitude, which could not
have been discovered by the exercise of ordinary care and must have the effect of depriving
or delaying the plaintiff from filing the cause of action.
Carnes v. Bank of Jonesboro, 58 Ga. App. 193(2) (1938); distinguished at 193 Ga. 477 (1942)
Fidelity and Casualty Co. v. Bishop, 108 Ga. App. 422, 423 (1963); distinguished at 243 Ga. 701 (1979)
38.200 Statute of Limitations; New Promise; Generally
A new promise to renew a right of action already barred or to constitute a point from which the limitation shall commence running on a right of action not yet barred, must be in writing and must be in the party’s own handwriting or signed by the party or someone authorized by the party. A new promise shall revive or extend the original liability; it does not create a
new one.
O.C.G.A. §§9-3-110, 9-3-113
Carnes v. Bank of Jonesboro, 58 Ga. App. 193 (1938); distinguished at 193 Ga. 477 (1942)
Collier v. Georgia Securities, 57 Ga. App. 485 (1938)
38.210 Statute of Limitations; New Promise; Letters (Correspondence)
When letters are relied upon to create a new promise to pay, the letters must, with reasonable certainty, connect the debt with the promise and clearly identify the debt by its words. In order to extend the statute of limitations, the letters must acknowledge the
particular debt as an existing liability.
Duke v. Lynch, 56 Ga. App. 331 (1937) Williams v. American Surety Co., 86 Ga. App. 533, 534 (1952)
38.300 Limitation of Actions; Bankruptcy Cases; New Promise; Generally
No promise made after discharge in bankruptcy to pay a debt provable in bankruptcy, and from which debt the debtor has been discharged, shall be binding unless the promise to pay is in writing and signed by the party who owed the debt or by someone authorized by
the party.
O.C.G.A. §9-3-111
38.310 Limitation of Actions; Bankruptcy Cases; Promise between Adjudication and Discharge A promise by a debtor to pay a previously existing debt to a creditor made after the debtor’s
adjudication as a bankrupt but before discharge will not be impaired by the subsequent
2 Limitation of Actions
discharge. The discharge of the bankrupt relates back to the adjudication of bankruptcy, and a new promise to pay may be made any time after adjudication of bankruptcy, before or after discharge. Moore v. Trounstine, 126 Ga. 116 (1906) Kilburn v. Mechanics’ Loan and Savings Co., 175 Ga. 146, 148 (1932) Peppers v. Siefferman, 153 Ga. App. 206 (1980); distinguished at 245 Ga. App. 198 (2000)
38.400 Limitation of Actions; Laches
Equity gives no relief to one whose long delay renders the discovery of the truth difficult, though no legal limitations bar the rights. Equity may impose an equitable bar whenever, from the lapse of time and undue delay of the complainant, it would be inequitable to allow
the complainant to enforce his/her legal rights.
O.C.G.A. §§23-1-25, 9-3-3
Limitation of Actions
40.000 MENTAL CAPACITY
40.010 Mental Capacity; Insane Persons; Definition; Generally The words “lunatics” or “insane persons” or “non compos mentis” all mean persons of
unsound mind.
O.C.G.A. §1-3-3(9)
40.020 Mental Capacity; Insane Persons; Guardianship and Civil Rights; Generally All persons of unsound mind or who are incapable of managing their affairs may have their
persons and/or property placed in the control of guardians.
40.030 Mental Capacity; Insane Persons; Contractual Power; Generally; Guardianship as Affecting Necessaries, Liability for The contract of a person who has never been adjudicated to be mentally incompetent but who is, in fact, mentally incompetent to the extent that the person is incapable of managing his/her estate is not absolutely void but only voidable. However, a contract made by such persons during a lucid interval is valid. After a court has adjudicated a person to be mentally incompetent and the affairs of such person are vested in a guardian, the power of such person to contract even though he/she is restored to sanity is entirely removed. Any contracts made by such person shall be void until the guardianship is dissolved. One may, however, recover for necessaries provided to a mentally incompetent person upon the same
proof as for minors.
O.C.G.A. §13-3-24
Norman v. Georgia Loan and Trust Co., 92 Ga. 295, 297 (1893)
Fields v. Union Central Life Ins. Co., 170 Ga. 239 (1930); distinguished at 59 Ga. App. 608 (1939); criticized in Atlanta Banking & Savings Co. v. Johnson, 179 Ga. 313 (1934)
40.040 Mental Capacity; Insane Persons; Tort Liability of An insane person, the same as any person, is liable for compensatory damages (that is, actual damages). An insane person is not liable for vindictive or punitive damages or for any
damages for torts when intent is a necessary part.
Sauers v. Sack, 34 Ga. App. 748 (1925)
40.050 Mental Incapacity at Time of Marriage; Incurable Mental Illness; Divorce
The following grounds shall be sufficient to authorize the granting of a total divorce
a) mental incapacity at the time of the marriage or
b) incurable mental illness.
However, no divorce shall be granted upon this ground unless the mentally ill party shall have been adjudged mentally ill by a court of competent jurisdiction or certified to be mentally ill by two physicians who have personally examined the party; and the party has been confined in an institution for the mentally ill or has been under continuous treatment for the mental illness for a period of at least two years immediately preceding the commencement of the action; and until the superintendent or other chief executive officer of the institution and one competent physician appointed by the court shall, after a thorough examination, make a certified statement under oath that it is their opinion that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship; and that in the light of present day medical knowledge, recovery of the party’s mental health cannot be expected at any time during his/her life.
Notice of the action shall and must be served upon the guardian of the person of such mentally ill person and the superintendent or other chief executive officer of the institution in which the person is confined. In the event there is no guardian of the person, then notice of the action shall be served upon a guardian ad litem appointed by the court in which such divorce action is filed, and the superintendent or the chief executive officer of the institution in which the person is confined shall also be served notice. Such guardian and
superintendent shall be entitled to appear and be heard upon the issues. The status of the
2 Mental Capacity
parties as to the support and maintenance of the mentally ill person shall not be altered in
any way by the granting of the divorce.
O.C.G.A. §19-5-3(11)
40.060 Mental Capacity; Testamentary Capacity, Test of
Incapacity to contract may coexist with a capacity to make a will. The amount of intellect necessary to constitute testamentary capacity or the ability to make a valid will is that which is necessary to enable the party to have a decided and rational desire about the disposition of property. “The desire must be decided, as distinguished from the wavering, vacillating fancies of a demented intellect. It must be rational, as distinguished from the ravings of a madman, the silly chatter of an idiot, the childish whims of imbecility, or the unpredictable
actions of a drunkard.”
O.C.G.A. §53-2-21
40.070 Mental Capacity; Contractual Capacity, Test of The degree of mentality necessary for a party to execute a valid contract is that the party must be possessed of mind and reason (equal to) (capable of) a clear and full understanding
of the nature and consequences of his/her act in making the contract.
Ison v. Geiger, 179 Ga. 798 (1934) Pace v. Pace, 220 Ga. 66, 68 (1964) Watkins et al. v. Davis, 152 Ga. App. 735 (1979)
Mental Capacity 3
Mental Capacity
42.000 MOTOR VEHICLES
(The judge should carefully determine which of the following charges should be given under
negligence per se and which should be given under ordinary care.)
42.010 Motor Vehicles; Speed and Control; Generally (Note: Only the parts of the second sentence of O.C.G.A. §40-6-180 that are applicable to the particular facts of the case on trial should be given.)
No person shall drive a vehicle at a speed greater than is reasonable and careful under the conditions and having regard for the actual and potential hazards then existing. Consistent with the foregoing, every person shall drive at a reasonable and prudent speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching and traversing a hillcrest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians
or other traffic or by reason of weather or highway conditions.
O.C.G.A. §40-6-180
42.100 Motor Vehicles; Definitions (See 42.110-42. 150.)
42.110 Motor Vehicles; Definitions; Intersection An intersection is the area between the a) curb lines, b) outside boundaries of the roadways, c) curb lines and outside boundaries of the roadways of two highways that join or cross
each other. The junction of street and alley is not an intersection.
O.C.G.A. §40-1-1(22)
42.120 Motor Vehicles; Definitions; Roadway
A roadway is that part of a highway ordinarily used for travel, not counting the shoulder.
O.C.G.A. §40-1-1(53)
42.130 Motor Vehicles; Definitions; Highway A highway is the entire width of every publicly maintained way or road when any part of it
is open to the public for travel by vehicles.
O.C.G.A. §40-1-1(19)
42.140 Motor Vehicles; Definitions; Through Highway A through highway is any highway where the traffic is given the right-of-way over
intersecting highways as indicated by signs or other traffic control devices.
O.C.G.A. §40-1-1(64)
42.150 Motor Vehicles; Definitions; Right-of-Way (Note: The statutory language has been purposely simplified, and refinements applicable to many individual situations have been necessarily omitted in a work of this length. If the court considers it necessary to charge the law in greater detail, it will be necessary to go to the text of the applicable statute.)
Right-of-way is the right of one vehicle or pedestrian to proceed in a lawful manner in preference to another vehicle or pedestrian approaching under such circumstances of direction, speed, and proximity as to give rise to danger or collision unless one gives way to
the other.
O.C.G.A. §40-1-1(52)
42.200 Motor Vehicles; Right-of-Way; Miscellaneous Regulations (Note: 42.210 and 42.220 are inapplicable to through highways.)
O.C.G.A. §40-1-1(47)(b)
2 Motor Vehicles
42.210 Motor Vehicles; Right-of-Way; Highways Crossing Each Other When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way
to the vehicle on the right.
O.C.G.A. §40-6-70
42.220 Motor Vehicles; Right-of-Way; T-Shaped Intersection
When a vehicle approaches or enters an intersection with no stop signs or other traffic control devices from a highway that terminates at the intersection, the driver of the vehicle shall yield the right-of-way to the other vehicle, whether the other vehicle approaches from
the left or right.
O.C.G.A. §40-6-70
42.230 Motor Vehicles; Right-of-Way; Yield Signs
The driver of a vehicle approaching a yield sign shall, in obedience to such sign, slow down to a speed reasonable for the existing conditions and, if required for safety to stop, shall stop at a clearly marked stop line or, if there is no stop line, before entering the crosswalk on the near side of the intersection or, if there is no crosswalk, at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After slowing or stopping, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time such driver is moving across or within the intersection or junction of roadways. If the driver is involved in a collision with a vehicle in the intersection after driving past a yield sign without stopping, such collision shall be deemed prima facie
evidence of his/her failure to yield the right-of-way.
O.C.G.A. §40-6-72(c)
42.240 Motor Vehicles; Right-of-Way; Stop Signs Except when directed to proceed by a police officer, every driver of a vehicle approaching a
stop sign shall stop at the clearly marked stop line, or if there is no stop line, before entering
Motor Vehicles 3
the crosswalk on the near side of the intersection or, if there is no crosswalk, at the point nearest the intersecting roadway where the driver has a view of the approaching traffic on the intersecting roadway before entering it. After having stopped, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or
within the intersection or junction of roadways.
O.C.G.A. §40-6-72(b)
42.250 Motor Vehicles; Right-of-Way; Left Turns
The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction that is within the intersection or so close to it as to constitute an
immediate hazard.
O.C.G.A. §40-6-71
42.260 Motor Vehicles; Right-of-Way; Private Roads The driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be
entered or crossed.
O.C.G.A. §40-6-73
42.270 Motor Vehicles; Right-of-Way; Alleys, Driveways, or Buildings
The driver of a vehicle emerging from an alley, building, private road, or driveway within a business or residential district shall stop the vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across such alley, building entrance, road or driveway or, in the event there is no sidewalk area, shall stop at the point nearest the street to
be entered where the driver has a view of approaching traffic.
O.C.G.A. §40-6-144
4 Motor Vehicles
42.300 Motor Vehicles; Right-of-Way; Pedestrians on Roadways Except as otherwise provided by law, any pedestrian upon a roadway shall yield the right-of-
way to all vehicles upon the roadway.
O.C.G.A. §40-6-96(d)
42.310 Motor Vehicles; Pedestrians on Highway; Generally When a sidewalk is provided, it shall be unlawful for any pedestrian to walk along and upon
an adjacent roadway. O.C.G.A. §40-6-96(a)
When a sidewalk is not provided but a shoulder is available, any pedestrian walking along and upon a highway shall walk only on the shoulder, as far as practicable from the
edge of the roadway. O.C.G.A. §40-6-96(b)
When neither a sidewalk nor a shoulder is available, any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of the roadway and
if on a two-lane roadway, shall walk only on the left side of the roadway. O.C.G.A. §40-6-96(c)
No pedestrian shall enter or remain on any bridge or approach to a bridge beyond the
bridge signal, gate, or barrier, after a bridge operation signal indication has been given. O.C.G.A. §40-6-96(e)
No pedestrian shall pass through, around, over, or under any crossing gate or barrier at a railroad grade crossing or bridge while such gate or barrier is closed or is being opened
or closed. O.C.G.A. §40-6-96(f)
A person who is under the influence of intoxicating liquor or any drug to a degree
that renders that person a hazard shall not walk or be upon any roadway.
O.C.G.A. §40-6-95
Motor Vehicles 5
42.400 Motor Vehicles; Rule of the Road (Meeting) Drivers of vehicles proceeding in opposite directions shall pass each other to the right. (Use remainder of charge only when applicable.) Upon roadways having width for not more than one line of traffic in each direction, each driver shall give to the other at least half of the traveled portion of the roadway, or as
nearly as possible.
O.C.G.A. §40-6-41
6 Motor Vehicles
44.000 NEGOTIABLE INSTRUMENTS
(Note: Refer to Uniform Commercial Code sections for specific charges that apply to the
particular facts of each case.)
44.010 Negotiable Instruments; Delivery; Negotiations; Indorsement “Negotiation” means a transfer of possession, whether voluntary or involuntary, of an
instrument by a person other than the issuer to a person who thereby becomes its holder. 0.C.G.A. §11-3-201(a)
(Choose whether “payable to order” or “payable to bearer.” )
44.011 Negotiation; Payable to Order If it is payable to order, it is negotiated by delivery with any necessary indorsement. An indorsement must be written by or on behalf of the holder, and on the instrument or on a
paper so firmly affixed as to become a part of it. O.C.G.A. §11-3-202
Except for negotiations by remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by
the holder.
O.C.G.A. §11-3-201(b)
44.012 Negotiation; Payable to Bearer If it is payable to bearer, it is negotiated by delivery only. An instrument payable to order and indorsed in blank becomes payable to bearer and may be negotiated by delivery alone until it is specially indorsed. An indorsement in blank specifies no particular endorsee and consists of a mere signature. A special indorsement specifies the person to whom it is made payable.
O.C.G.A. §§11-3-202, 11-3-204
If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.
O.C.G.A. §11-3-201(b)
44.013 Negotiation; Special Indorsement If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the
instrument payable, it is a “special indorsement.”
O.C.G.A. §11-3-205(a)
44.014 Negotiation; Blank Indorsement If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a “blank indorsement.” When endorsed in blank, an instrument becomes payable to
bearer and may be negotiated by transfer of possession alone until specially endorsed.
O.C.G.A. §11-3-205(b)
44.020 Negotiable Instruments; Indorsement, Necessity of; Effect of Delivery Without
Unless otherwise agreed, any transfer for value of an instrument not then payable to bearer
gives the transferee the specifically enforceable right to have the unqualified indorsement
of the transferor. Negotiation takes place only when the indorsement is made, and until that
time there is no presumption that the transferee is the owner. O.C.G.A. §11-3-201(3)
Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of indorsement by the transferor, the transferee has a specifically enforceable right to the unqualified indorsement of the transferor, but
negotiation of the instrument does not occur until the indorsement is made.
O.C.G.A. §11-3-203(c)
2 Negotiable Instruments
When a security in registered form has been delivered to a purchaser without a necessary indorsement, that person may become a bona fide purchaser only once the indorsement is provided. Against the transferor, the transfer is complete upon delivery, and the purchaser has a specifically enforceable right to have any necessary indorsement
provided. 0.C.G.A. §§11-3-201(3), 11-8-307
If a security certificate in registered form has been delivered to a purchaser without a necessary indorsement, the purchaser may become a protected purchaser only when the indorsement is provided. However, against a transferor, a transfer is complete upon delivery, and the purchaser has a specifically enforceable right to have any necessary indorsement
provided.
O.C.G.A. §11-3-304(d)
44.100 Negotiable Instruments; Negotiability; Fraud, Incapacity, and Other Defects as Affecting Rescission; Void Transactions
Negotiation is effective to transfer an instrument even though the negotiation is made by an
infant or any other person without capacity; or obtained by fraud, duress, or mistake of any
kind; or part of an illegal transaction; or made in breach of duty. Except as against a
subsequent holder in due course, such negotiation is in an appropriate case subject to
rescission, the declaration of a constructive trust, or any other remedy permitted by law. O.C.G.A. §11-3-207(1)
Negotiation is effective even if obtained from an infant, a corporation exceeding its power, or a person without capacity; or obtained by fraud, duress, or mistake; or in breach of duty or as part of an illegal transaction. To the extent permitted by other law, negotiation may be rescinded or may be subject to other remedies, but those remedies may not be asserted against a subsequent holder in due course or a person paying the instrument in good
faith and without knowledge of facts that are a basis for recission or other remedy.
O.C.G.A. §11-3-202
Negotiable Instruments 3
“Holder in due course” means the holder of an instrument if
1) the instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity and
2) the holder took the instrument
a) for value,
b) in good faith,
c) without notice that the instrument is overdue or has been dishonored or that there is an uncured fault with respect to payment of another instrument as part of the same series,
d) without notice that the instrument contains an unauthorized signature or has been altered,
e) without notice of any claim to the instrument on its proceeds or a claim to rescind the negotiation and recover the instrument or its proceeds, and
f) without notice that any party has a defense or claim in recoupment of the
obligor against the original payee of the instrument. O.C.G.A. §11-3-302(a)
(The following provisions of O.C.G.A. §11-3-302 may be applicable and should be given as required.)
Notice of discharge of a party, other than discharge in an insolvency proceeding, is not notice of a defense under subsection (a) of section O.C.G.A. §11-3-302, but discharge is effective against a person who became a holder in due course with notice of the discharge. Public filing or recording of a document does not of itself constitute notice of a defense, claim in recoupment, or claim to the instrument.
Except to the extent a transferor or predecessor in interest has rights as a holder in
due course, a person does not acquire rights of a holder in due course of an instrument taken
a) by legal process or by purchase in an execution, bankruptcy, or creditor’s sale or
similar proceeding,
4 Negotiable Instruments
b) by purchase as part of a bulk transaction not in the ordinary course of business of the transferor, or
c) as the successor in interest to an estate or other organization. 0.C.G.A. §11-3-302(c)
In the event the instrument is issued or transferred for a promise of performance and if the promise of performance that is the consideration for an instrument has been partially performed, the holder may assert rights as a holder in due course of the instrument only to the fraction of the amount payable under the instrument equal to the value of the partial
performance divided by the value of the promised performance. O.C.G.A. §11-3-302(d)
If the person entitled to enforce an instrument has only a security interest in the instrument and the person obliged to pay the instrument has a defense, claim in recoupment, or claim to the instrument that may be asserted against the person who granted the security interest, the person entitled to enforce the instrument may assert rights as a holder in due course only to an amount payable under the instrument that at the time of enforcement of the
instrument does not exceed the amount of the unpaid obligation secured. O.C.G.A. §11-3-302(e)
To be effective, notice must be received at a time and in a manner that gives a
reasonable opportunity to act on it. O.C.G.A. §11-3-302(f)
(This portion of the charge should be given only if applicable to the facts.) If a transaction is absolutely void from the beginning, such as a note or check being
given for stolen property, it is not good, even in the hands of a holder in due course.
Middle Ga. Livestock v. Comm. Bk., 123 Ga. App. 733 (1971)
Negotiable Instruments 5
Negotiable Instruments
46.000 NUISANCES
46.010 Nuisances; Definition
A nuisance is anything that causes hurt, inconvenience, or damage to another. The fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful or such as would affect only one of extraordinary or demanding taste, but it shall be such as would affect an ordinary,
reasonable person.
O.C.G.A. §41-1-1
46.020 Nuisances; Air, Right to
Every person has the right to have the air over the person’s premises remain in its natural state and free from artificial impurities, consistent with the locality and character of the community. The pollution of air, as far as reasonably necessary to the enjoyment of life and
indispensable to the progress of society, is not actionable.
Holman v. Athens Empire Laundry Co., 149 Ga. 345 (1919) Poultryland Inc. v. Anderson, 200 Ga. 549, 557 (1946)
46.030 Nuisances; Reasonable Use of Property, Duty of
The privilege of use incident to the right of property must not be exercised in an unreasonable manner so as to inflict injury upon another unnecessarily. To constitute a nuisance, the use must be such as to produce actual, tangible, and substantial injury to neighboring property or such as to interfere sensibly with its use and enjoyment by persons
of ordinary sensibilities.
Holman v. Athens Empire Laundry Co., 149 Ga. 345 (1919) Gordy v. Armstrong, 190 Ga. 670, 679 (1940)
46.040 Nuisances; Public Nuisances, Private Right to Abate Generally, a public nuisance gives no right of action to any individual, but if a public nuisance causes special damage to an individual other than that suffered by the general
public, the special damage gives that person a right of action. O.C.G.A. §§41-1-3, 41-2-2 A private nuisance may be abated on the application of the person injured.
O.C.G.A. §41-2-3
2 Nuisances
48.000 PARTNERSHIP
48.010 Partnership; Defined A partnership is an association of two or more persons to carry on as co-owners of a business for profit (and includes for all purposes of the laws of this state, a limited liability
partnership).
O.C.G.A. §14-8-6(a)
48.020 Partnership; Creation; Generally and as to Third Persons
A partnership may be created either by written or oral contract. Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership alone does not establish a partnership but are only factors to consider. The sharing of gross returns alone does not establish a partnership. Sharing of profits of the business, however, is prima facie evidence of the existence of a partnership provided that the share was not for a
payment of the following:
a) debt;
b) wages, salary, or other compensation; c) rent;
d) annuity;
e) interest or payment on a loan;
f) consideration for a sale.
Except as provided otherwise by law (O.C.G.A.§14-8-16), persons who are not
partners as to each other are not partners as to third persons. O.C.G.A. §14-8-7
A partnership is a contractual relationship and may result from an express agreement that the relationship shall exist or by implication from certain agreements that the parties have made. If the parties, by written or oral contract, expressly agree to become partners, a partnership is created. If they enter into an agreement whereby there is a joint ownership,
use, or enjoyment of the profits of undivided property, real or personal, a partnership arises
by implication. If two or more persons put into an enterprise property, money, or other things of value other than mere personal services upon agreement that they shall each have an interest in the profits and that the earnings on the investment shall determine the extent of all profits, if any, to be received, it is a partnership, although no mention may be made as to
losses.
Butler v. Frank, 7 Ga. App. 655 (1910) West Lumber Co. v. Chandler, 46 Ga. App. 408 (1933)
48.100 Limited Partnerships under the Revised Uniform Limited Partnership Act
(Note: The following provisions of the Revised Uniform Limited Partnership Act shall not
apply to limited partnerships existing before 7/1/88, unless otherwise elected to be bound
pursuant to O.C.G.A. §14-9-1201.)
48.110 Limited Partnership; Definition A limited partnership means a partnership formed in accordance with the laws of the state by two or more persons and having one or more general partners and one or more limited
partners.
O.C.G.A. §14-9-101
48.120 Limited Partner, Liability of A limited partner is not liable for the obligations of a limited partnership by reason of being a limited partner (and does not become so by participating in the management or control of
the business.)
O.C.G.A. §14-9-303
48.130 Limited Partner; Right of Inspection and Information If a limited partner makes a reasonable request during ordinary business hours, that person
has the right to
2 Partnership
1) inspect the partnership records,
2) copy such records,
3) obtain from the general partner(s) information related to the interest of the limited partner,
4) obtain tax returns as they become available, and
5) obtain other information regarding the affairs of the limited partnership as is just and
reasonable.
O.C.G.A. §14-9-305
48.140 Limited Partnership; General Partner; Rights, Powers, and Liabilities A general partner of a limited partnership has the rights and powers and is subject to the restrictions of and liabilities to the partnership and to the other partners of a partner in a
partnership without limited partners. O.C.G.A. §14-9-403(a)
A general partner of a limited partnership has the liabilities of a partner in a
partnership without limited partners to persons other than the partnership and other partners.
O.C.G.A. §14-9-403(b)
48.150 Limited Partnership; Contribution, Forms of The contribution of a partner to the capital of a limited partnership may include cash,
property, and services rendered.
O.C.G.A. §14-9-501
48.160 Limited Partner; Distribution upon Withdrawal A limited partner may withdraw from a limited partnership at the time or upon the
occurrence of events specified in writing in the partnership agreement. O.C.G.A. §14-9-603
A partner who withdraws is entitled to receive the fair value of the partner’s interest
within a reasonable time after the partner withdraws. The fair value of the withdrawn
Partnership 3
interest is determined as of the date of withdrawal. This provision does not apply if the
partnership agreement provides otherwise.
O.C.G.A. §14-9-604
48.170 Limited Partnership; Partnership Interest, Nature of A partnership interest is personal property. A partner has no interest in specific partnership property.
O.C.G.A. §14-9-701
48.180 Limited Partner; Right to Bring Action A limited partner may maintain an action in the right of a limited partnership to recover a judgment in its favor if general partners with authority to do so have refused to bring the
action or an effort to make them bring the action is not likely to succeed. O.C.G.A. §14-9-1001
To bring such an action, the limited partner must have been a partner at the time of bringing the action and must have been a partner at the time of the transaction for which he/she complains or that partner’s status must have devolved by laws or by terms of the
partnership agreement from a person who was a partner at the time of the transaction.
O.C.G.A. §14-9-1002
48.200 Limited Partnerships under the Uniform Limited Partnership Act
(Note: The following charge applies to limited partnerships formed since 2/15/52 and before 7/1/88 that did not elect to be bound by the Revised Uniform Limited Partnership Act. See O.C.G.A. §14-9A-5 for law on limited partnership existing prior to that date. The charge contains many of the more important statutory provisions concerning limited partners but is not exhaustive. It should not be given in full but should be scrutinized carefully for the
provisions applicable to any given case.)
4 Partnership
48.210 Limited Partnership; Definition A limited partnership is a partnership formed by two or more persons under the provisions
of law having as members one or more general partners and one or more limited partners.
O.C.G.A. §14-9A-2
48.220 Limited Partnership; Obligations The limited partners as such shall not be bound by partnership obligations.
O.C.G.A. §14-9A-2
48.230 Limited Partnership; Contributions
The contributions of a limited partner may be cash or other property but not services.
O.C.G.A. §14-9A-40
48.240 Limited Partnership; False Statements in Certificate, Liability for If the certificate contains a false statement, one who suffers loss by reliance on such
statement may hold liable any party to the certificate who knew the statement to be false
a) at the time the person signed the certificate or b) subsequently but within a sufficient time before the statement was relied upon to enable the person to cancel or amend the certificate or to file a petition for its
cancellation or amendment.
(Note: O.C.G.A. $14-9A-20 requires certificates of limited partnership to be filed
with the clerk of superior court.)
O.C.G.A. §14-9A-27
48.250 Limited Partnership; Rights
A limited partner shall have the same rights as a general partner to expect
Partnership
1) the partnership books to be kept at the principal place of business of the partnership and at all times to inspect and copy any of them;
2) on demand, true and full information of all things affecting the partnership and a formal account of partnership affairs whenever circumstances render it just and reasonable;
3) dissolution and winding up by decree of court.
A limited partner shall have the right to receive a share of the profits or other compensation by way of income and to the return of that partner’s contribution as provided
by law.
O.C.G.A. §14-9A-42
48.260 Limited Partnership; Withdrawal or Reduction of Contributions (See 48.261-48.264.) 48.261 Limited Partnership; Conditions for Receipt of Contribution
A limited partner shall not receive from a general partner or out of a partnership property
any part of that partner’s contribution until
1) all liabilities of the partnership, except liabilities to general partners and to limited partners on account of their contribution, have been paid or there remains property of the partnership sufficient to pay them,
2) the consent of all members is had, unless the return of the contribution may be rightfully demanded under the provisions of charge 48.262, and
3) the certificate is cancelled or so amended as to set forth the withdrawal or reduction.
48.262 Limited Partnership; Demand for Return of Contribution Subject to the provisions of charge 48.261, a limited partner may rightfully demand the
return of that partner’s contribution
a) on the dissolution of a partnership,
b) when the date specified in the certificate for its return has arrived, or
6 Partnership
c) after six months’ notice in writing has been given to all other members if no time is specified in the certificate, either for the return of the contribution or for the
dissolution of the partnership.
48.263 Limited Partnership; Right to Receive Cash In the absence of any statement in the certificate to the contrary or the consent of all members, a limited partner, irrespective of the nature of that partner’s contribution, has only
the right to demand and receive cash in return for the contribution.
48.264 Limited Partnership; Dissolution of Partnership
A limited partner may have the partnership dissolved and its affairs completed when
a) the limited partner rightfully but unsuccessfully demands the return of that partner’s contribution or
b) the other liabilities of the partnership have not been paid or the partnership property is insufficient for their payment as required by 48.261 (1) and the limited partner
would otherwise be entitled to the return of that partner’s contribution.
O.C.G.A. §14-9A-47
48.270 Limited Partnership; Liability to Partnership
Limited partners are liable to the partnership
1) for the difference between their contributions as actually made and that stated in the certificate as having been made and 2) for any unpaid contribution that they agreed in the certificate to make in the future at
the time and on the conditions stated in the certificate. Limited partners hold as trustees for the partnership
1) specific property stated in the certificate as contributed by them but that was not contributed or that has been wrongfully returned and 2) money or other property wrongfully paid or conveyed to them on account of their
contribution.
Partnership 7
The liabilities of a limited partner as set forth above can be waived or compromised only by the consent of all members, but a waiver or compromise shall not affect the right of a creditor of a partnership who extended credit or whose claim arose after the filing and before a cancellation or amendment of the certificate to enforce such liabilities.
When contributors have rightfully received the return in whole or in part of the capital of their contributions, they are liable to the partnership for any sum not in excess of such return with interest necessary to discharge its liabilities to all creditors who extended
credit or whose claims arose before such return.
O.C.G.A. §14-9A-48
48.280 Limited Partnership; Nature of Interest in Partnership
A limited partner’s interest in the partnership is personal property.
O.C.G.A. §14-9A-49
48.290 Limited Partnership; Death, Effect of On the death of a limited partner, the executor or administrator shall have all the rights of that limited partner for the purpose of settling the decedent’s estate and such power as the deceased had to constitute an assignee as a substitute limited partner.
The estate of a deceased limited partner shall be liable for all that limited partner’s liabilities.
O.C.G.A. §14-9A-51
48.295 Limited Partnership; General Partners; Rights, Powers; Liabilities
A general partner of a limited partnership shall have all the rights and powers and be subject to all the restrictions and liabilities of a partner in a partnership without limited partners, except that without the written consent or ratification of the specific act by all the limited
partners, a general partner or all of the general partners have no authority to
a) do any act in contravention of the certificate, b) do any act that would make it impossible to carry on the ordinary business of the
partnership,
8 Partnership
c) confess a judgment against the partnership,
d) possess partnership property or assign their rights in specific partnership property, for other than a partnership purpose,
e) admit a person as a general or limited partner, unless the right to do so is given in the certificate, or
f) continue the business with partnership property on the death, retirement, or insanity
of a general partner, unless the right to do so is given in the certificate.
O.C.G.A. §14-9A-70
48.300 Partnership; Employee Distinguished from Partner
An agreement to pay an employee a share in the profits of a business when the employee has no interest in the business as owner or its control or responsibility for its losses does not make that employee a partner. The test as to whether two persons are partners is their intention to bind each other (that is, be agents for each other) in connection with a business.
Ordinarily, an agreement to share profits and losses will prove partnership.
Floyd v. Kicklighter, 139 Ga. 133 (1912)
48.400 Partnership; Other Transactions
Ordinarily, evidence of actions and transactions other than those involved in the case on trial are not admissible. There are certain exceptions to this rule. One exception is in cases in which the motive and intent of a party have been questioned. In such cases, evidence of similar transactions occurring at about the same time may be received by the jury for
consideration in determining the motive and intent of such party.
Deckner- Willingham v. Turner, 171 Ga. 240 (1930) Grainger v. Jackson, 122 Ga. App. 123 (1970)
Partnership 9
50.000 PRESCRIPTION
50.010 Prescription; Definition Title by prescription is the right to property that a possessor acquires by reason of the
continuance of possession for a period of time established by law. O.C.G.A. §44-5-160 In order for possession to be the foundation of prescriptive title, it must
1) be in the right of the possessor and not of another,
2) not have originated in actual or positive fraud, (Note: Except as provided in O.C.G.A. §44-5-162, actual or positive fraud and not merely constructive or legal.)
3) be public, continuous, exclusive, uninterrupted, and peaceable, and
4) be accompanied by a claim of right.
Permissive possession cannot be the foundation of a prescription, until it becomes an
adverse claim and actual notice to the other party is given.
O.C.G.A. §44-5-161
50.100 Prescription; Possession, Actual
(See 50.110-50.112.)
50.110 Prescription; Possession, Actual; Definition Actual possession of lands may be evidenced by enclosure, cultivation, or any use and occupation of the lands that is so notorious as to attract the attention of every adverse
claimant and so exclusive as to prevent actual occupation by another.
O.C.G.A. §44-5-165
50.111 Prescription; Possession, Actual; Boundaries and Nature It is not required that the lot should be enclosed on every side by an artificial enclosure. A
natural barrier in part may be utilized, provided it is of such a character as, in connection
with a fence, will constitute substantial enclosure of the land and provided it is sufficient to indicate possession over the premises and to give notoriety to the claim of possession. When the occupant locates boundaries by visible marks such as chops, blazes, setting up stones, or some other visible manner, and uses the land within them, this action would constitute possession. Such possession would be established whenever the boundaries of the occupied
property can be clearly determined in any way.
McCrea v. Georgia Power Co., 179 Ga. 1 (5) (1934) Fitzpatrick v. Massee, 188 Ga. 80 (1939)
In order to acquire a prescriptive title by virtue of possession alone for twenty years, such possession must be actual, and the prescription will not extend beyond the limits of actual possession. If one seeks to prescribe by virtue of actual possession alone, one must
show the extent of such possession.
Tillman v. Bomar, 134 Ga. 660(5) (1910) Toms v. Knighton, 199 Ga. 858, 866 (1945)
50.112 Prescription; Possession, Actual; Duration Possession of real property in conformance with the requirements of O.C.G.A. §44-5-161 for a period of 20 years, by itself, shall confer or give good title by prescription to the property against everyone except the state and those persons laboring under the disabilities stated in O.C.G.A. §44-5-170.
(Note: O.C.G.A. §44-5-170 will not run against rights of [1] minors during their minority, [2] incompetents due to mental illness or retardation, or [3] prisoners during
imprisonment. )
O.C.G.A. §44-5-170
2 Prescription
50.121 Prescription; Possession, Constructive (See 50.122—50.125.)
50.122 Prescription; Possession, Constructive; Definition; Conflicting Claims Constructive possession of land exists when one who has paper title to a tract of land is in actual possession of only a part of the tract. In such a case, that possession shall be construed to extend to the boundary of the tract. When land is included in the boundaries of more than one tract so that adjacent owners are in constructive possession of the same land, no
prescription shall arise in favor of any such owners.
O.C.G.A. §44-5-166
50.123 Prescription; Possession, Constructive; Recorded Deeds; Boundaries Possession under a duly recorded deed will be construed to extend to all the contiguous
property embraced in the deed.
O.C.G.A. §44-5-167
50.124 Prescription; Possession, Constructive; Duration, Fraud, and Forgery
Possession of real property, under written evidence of title for seven years, shall confer or give good title by prescription to the property against everyone except the state and those
persons laboring under disabilities, except that if such written title is forged or fraudulent
and if the person claiming adverse possession had actual notice of such forgery or fraud
when that person commenced possession, no prescription may be based on such possession.
O.C.G.A. §44-5-164
50.125 Prescription; Possession, Constructive; Color of Title A color of title is anything in writing connected with the title that serves to define the extent of the claim. It matters not how imperfect or defective the writing, which is considered to be
a conveyance, may be if it defines the extent of the claim.
Prescription 3
Street v. Collier, 118 Ga. 470(1) (1903) Rogers v. Manning, 200 Ga. 844-852 (1946)
It is necessary that the writing relied upon as color of title should describe the
property or furnish a key for description. McCrea v. Georgia Power Co., 187 Ga. 708-710 (1939)
The same certainty of description that is necessary to a good deed is necessary to any
paper that is relied on as color of title.
McCrea v. Georgia Power Co., 187 Ga. 708-710 (1939) Crawford v. Verner, 122 Ga. 814, 816 (1905)
50.200 Prescription; Acquiescence in Line Acquiescence for seven years, by acts or declaration of adjoining land owners, shall
establish a dividing line. O.C.G.A. §44-4-6
To establish a line by acquiescence, it must appear that the owners of the property to be affected by the establishment of the line either acted in such a manner for a duration of seven years or made such declaration during the continuance of that period as to show that the line claimed was the true line dividing the properties. Actual possession by the respective owners up to the line may show acquiescence in the line, but such actual
possession is not necessary to show acquiescence in the line.
Tietjen v. Dobson, 170 Ga. 123(3) (1930) Peacock v. Boatright, 221 Ga. 661, 663 (1966)
50.210 Prescription; Agreed Line
An unagreed upon, undetermined, or disputed line between adjoining owners may be established by oral agreement, if the agreement is accompanied by actual possession up to the line or is otherwise acknowledged or executed. The agreement may be acknowledged or
executed by the erection of physical monuments upon the agreed line or by the marking of
4 Prescription
trees plainly indicating the line when such erection of monuments or marking of trees is
done with the knowledge and mutual assent of the respective owners.
Tietjen v. Dobson, 170 Ga. 123(4) (1930) Griner v. Lindsey, 210 Ga. 563, 566 (1954)
50.220 Prescription; Fraud to Prevent Prescription
In order for fraud to prevent the possession of property from being the foundation of prescription, such fraud must be actual or positive and not merely constructive or legal. When actual or positive fraud prevents or deters another party from acting, prescription shall
not continue until such fraud is discovered.
O.C.G.A. §44-5-162 The actual or positive fraud referred to is actual moral fraud, a wrongful act, and not
an act that the law designates as fraud regardless of good faith.
Connell v. Culpepper, 111 Ga. 805 (1900) Ware v. Barlow, 81 Ga. 1 (1887)
In a suit for land in which the defendant relies upon title by prescription in order to defeat such defense on the ground of fraud, it must appear that the fraud of the alleged prescriber was such as would originally affect the conscience and thus amount to actual
moral wrong.
Kelley v. Tucker, 175 Ga. 796(1) (1932) Barfield v. Vickers, 200 Ga. 279, 281 (1946)
50.300 Prescription; Cotenants There may be no adverse possession against a cotenant until the adverse possessor effects an actual ouster and retains exclusive possession; in such event, the cotenant may bring an
action to recover possession. O.C.G.A. §44-6-123
When two or more persons own lands jointly, they are known in law as cotenants,
and possession of one would constitute possession of all, and there could be no adverse
Prescription 5
possession on the part of one against the other or others until an actual ouster, or exclusive
possession after demand, or express notice of adverse possession.
Cowart v. Strickland, 170 Ga. 530(8) 537 (1930)
6 Prescription
52.000 PRIVATE WAYS
52.001 Private Ways; Establishment by Statute (Ways of Necessity) (See 52.010-52.020. )
52.010 Private Ways; Generally
Before one can assert a way of necessity over the land of another, every essential condition to such a right must affirmatively appear. Not only must the necessity of entry to and exit from the applicant’s own land exist, but also it must appear that there is no other suitable outlet and that the applicant has complied with the provisions of the law as to adequate compensation having been paid or tendered to the owner of the land to be subjected to the
burden of the easement sought.
Charleston, etc., Railway Co. v. Fleming, 119 Ga. 995(2) (1904) Miller v. Slater, 182 Ga. 552, 557 (1936)
(Note: Provisions to O.C.G.A. §§44-9-41-44-9-47 relate to the laying out of ways of
necessity.)
52.020 Private Ways; Indispensability
Cases of necessity contemplated in that provision of the constitution that declares that in cases of necessity, private ways may be granted upon just compensation being first paid do not arise except when the way sought to be laid out is absolutely indispensable to the applicant as a means of reaching the applicant’s property. If there is in existence a way suitable for all the purposes for which the property is to be used, a case of necessity does not
arise, even though such way may be less convenient than the one proposed.
Chattanooga, etc., RR Co. v. Philpot, 112 Ga. 153 (1900) Wyatt v. Hendrix, 146 Ga. 143 (1916)
52.100 Private Ways; Establishment by Prescription Whenever a private way has been in constant and uninterrupted use for seven years or more and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere
with that private way.
O.C.G.A. §44-9-54 In order to acquire a prescriptive title to a right-of-way, it must not exceed twenty feet in width and those using it must keep it in repair. They cannot acquire a right to a greater width by swerving to avoid an obstacle that they themselves should have removed. Parts of the way that were over twenty feet wide when originally laid out would not
necessarily prevent the establishment of a private way.
Kirkland v. Pitman, 122 Ga. 256, 260 (1905) Ridley v. Griffeth, 216 Ga. 167 (1960)
(Note: O.C.G.A. §44-9-40[a] changed maximum width of private ways from 15 to 20 feet.)
52.200 Private Ways; Permissive Use When the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that the user’s position
has changed from that of a mere licensee to that of a prescriber.
First Christian Church v. Realty Investment Co., 180 Ga. 35(1) (1934) Rothberg v. Peachtree Investments Inc., 220 Ga. 776, 780 (1965)
2 Private Ways
54.000 PROCESSIONING
54.010 Processioning; General Rules
In cases of disputed land lines, it is the duty of the processioners to fix and determine the boundaries as they actually exist. They shall mark anew those lines that can be taken as having been formerly located and established and not undertake to locate them as they might
think they should originally have been laid out. Cosby v. Reid, 21 Ga. App. 604 (1918)
In all cases of disputed lines, the following rules shall apply: natural landmarks, being less liable to change and not capable of counterfeit, shall be the most conclusive evidence; ancient or genuine landmarks, such as corner stations or marked trees, shall control the course and distance called for by the survey. If the corners are established and the lines not marked, a straight line, as required by the plat, shall be run, but an established marked line, though crooked, shall not be overruled; courses and distances shall be resorted
to in the absence of higher evidence. O.C.G.A. §44-4-5
The law with respect to the duties of processioners in determining land lines shall guide you in determining the case now before the court on a protest filed to the return of the
processioners.
54.020 Processioning; Issue
On the trial of a protest to the return of processioners, the issue is not title but boundary,
as was the case before the processioners. The rules of law governing processioners in determining the probative value of facts established by the evidence also shall govern you in
weighing the evidence and determining the issues raised by the protest.
Georgia Talc Co. v. Cohutta Talc Co., 140 Ga. 245 (1913) Stanfill v. Hiers, 80 Ga. App. 874, 879 (1950)
54.030 Processioning; Muniments of Title
Muniments, that is, deeds or other written evidence of title accompanied by diagrams or plats that might on paper locate the boundaries of land, will not by themselves be enough to mark a line.
Even though the course and extent of the line may not have been actually marked out upon the earth’s surface, if there should exist enough physically established corners or landmarks, the mere connecting of which by straight lines or from which the projecting of the courses and distances shown by the plat would be enough to complete the boundary, it would be the duty of the processioners to ascertain, mark, and establish the same, respecting
always the rights under actual possession.
Cosby v. Reid, 21 Ga. App. 604(1) (1918) Stripland v. Nalley, 108 Ga. App. 311, 312 (1963)
54.040 Processioning; Possession, Actual (Adverse)
(Note: For definition of actual possession, see 50.100, Prescription; Possession, Actual.) When actual possession has been claimed as a of right for more than seven years,
such claim shall be respected, and the lines shall be marked so as not to interfere with such
possession. O.C.G.A. §44-4-7
In order for such possession to be respected by the processioners and the lines marked so as not to interfere with it, possession must be actual at the time of the
processioning and must have been under a claim of right for more than seven years.
Norman v. Smith, 131 Ga. 69(4), 72 (1908) McCollum v. Thomason, 32 Ga. App. 160 (1924)
54.050 Processioning; Landmarks; Reputation General reputation in the neighborhood shall be evidence as to ancient landmarks of more
than 30 years’ standing.
O.C.G.A. §44-4-6
2 Processioning
Traditional evidence as to ancient boundaries and landmarks shall be admissible in
evidence, the weight to be determined by you according to the source from which it comes. O.C.G.A. §24-3-13
It is competent to establish boundaries by proof of traditional reputation in the neighborhood derived from ancient sources or from earlier declarations of persons since deceased who had peculiar means of knowing what the reputation of the boundary was in an
ancient day.
McAfee v. Newberry, 144 Ga. 473 (1915) Knighton v. Hasty, 200 Ga. 507, 508 (1946) Plantation Land Co. v. Bradshaw, 232 Ga. 435 (1974)
Processioning
56.000 RAILROAD CROSSINGS
56.001 Railroad Crossings; Signals Outside Municipalities (Blowpost Law) Upon the line of each railway at a point 400 yards from the center of its intersection at grade with any public road or street used by the public generally in crossing the tracks of the railway and on each side of the crossing, there shall be erected by the railroad company operating the railway a blowpost to indicate the existence of the crossing. The engineer operating the locomotive engine of any railroad train moving over the tracks of the railroad shall be required, upon reaching the blowpost, as a signal of approach to the crossing, to blow through the whistle two long blasts, one short blast and one long blast, said blasts to be loud and distinct.
In addition to these requirements, after reaching the blowpost farthest removed from the crossing and while approaching the crossing, the engineer shall keep and maintain a constant and vigilant lookout along the track ahead of the engine and shall otherwise exercise due care in approaching the crossing in order to avoid injuring any person or property that may be on the crossing or upon the line of the railway at any point within fifty
feet of the crossing.
O.C.G.A. §46-8-190 Luke v. Powell, 63 Ga. App. 795, 802 (1940)
The law does not undertake to say what would constitute a constant and vigilant lookout nor due care in approaching the crossing. What would constitute a reasonable and substantial compliance with those requirements is a question for you, the jury, to determine in light of all the facts and circumstances of the case. A violation of any of the requirements of this code section would constitute negligence, but it would remain for you, the jury, to determine under all the facts and circumstances of the case whether such negligence was the
proximate cause of injury.
Central of Georgia Railway Co. v. Johnston, 45 Ga. App. 773 (1932)
56.010 Railroad Crossings; Signals within Municipalities; Bell
Within the corporate limits of cities, a railroad company shall not be required either to erect blowposts or to blow the whistles of its locomotives in approaching the crossings or public roads. Instead, the engineer of each locomotive shall be required to signal the approach of the train to the crossing within the corporate limits by constantly tolling the bell of the locomotive.
The engineer shall keep and maintain a constant and vigilant lookout along the track ahead of the engine while moving within the corporate limits of a city, town, or village and shall exercise due care in controlling the movements of the engine or train so as to avoid injuring persons or property that may be on the crossing or within fifty feet of the crossing on the line of the railway and shall observe any ordinance of the city, town, or village
regulating the speed at which railroad trains may run. O.C.G.A. §46-8-191
A violation of any of the requirements of this code section would constitute negligence, but it would remain for you, the jury, to determine under all the facts and
circumstances of the case whether such negligence was the proximate cause of injury.
Pollard v. Savage, 55 Ga. App. 470 (1937) Southern Railway Co. v. Blanton, 63 Ga. App. 93, 104 (1940) Seaboard Coastline Railroad Co. v. Smith, 131 Ga. App. 288 (1974)
56.100 Railroad Crossings; General (The following should be given if applicable.)
56.110 Railroad Crossings; Maintenance of Grade Crossings
Any railroad whose track or tracks cross a public road at a grade shall have a duty to maintain the grade crossings in such condition as to permit the safe and convenient passage of public traffic. This duty of maintenance shall include that portion of the public road lying between the track or tracks and for two feet beyond the ends of the cross ties on each side of
the crossings.
O.C.G.A. §32-6-190
2 Railroad Crossings
56.120 Railroad Crossings; Stop at Railroad Grade Crossings (Note: Legislation pertaining to stops at railroad grade crossings may be found in O.C.G.A. §$40-6-140-40-6-143. The original charge was split into 56.121 through 56.124.)
56.121 Railroad Crossings; Obedience to Signal Indicating Approach of a Train When a signal of an approaching train is clearly visible or a crossing gate is lowered or an approaching train is dangerously close, an approaching motorist shall stop between fifteen and fifty feet from the nearest rail, and the motorist shall not drive through a crossing barrier
while it is opening or closing.
O.C.G.A. §40-6-140
56.122 Railroad Crossings; All Vehicles Must Stop at Certain Railroad Grade
Crossings
O.C.G.A. §40-6-141; applies to crossings where stop signs are erected
56.123 Railroad Crossings; Certain Vehicles Must Stop at All Railroad Crossings
Vehicles carrying passengers for hire, school buses, and vehicles containing explosives or
flammable liquids shall make stops at all crossings, together with additional safety
provisions.
O.C.G.A. §40-6-142
56.124 Railroad Crossings; Moving Heavy Equipment at Railroad Grade
Crossings
O.C.G.A. §40-6-143; contains miscellaneous safety provisions pertaining to the moving
of heavy equipment
Railroad Crossings 3
58.000 SUBROGATION
58.010 Subrogation; Circumstances Creating Right Subrogation is the substitution of another person in the place of the creditor. This other person succeeds to all the rights of the creditor, but subrogation occurs only in certain cases.
Subrogation arises only in those cases in which
a) the party claiming it advanced the money to pay a debt that, in the event of a default by the debtor, the party would have been bound to pay,
b) the party has some interests to protect, or
c) the party advanced the money under an agreement, express or implied, made either with the debtor or creditor that the party would be subrogated to the rights and
remedies of the creditor.
Lutes v. Warren, 146 Ga. 641 (1917)
Gilbert v. Dunn, 218 Ga. 531, 533 (1962)
Liberty Mutual Insurance Co. v. Alsco Construction Inc. et al., 144 Ga. App. 307, 309 (1977)
A person who makes an advancement of money in payment of the debts of another without any assignment or agreement for subrogation and without any legal obligation to make such payment is not entitled to be subrogated to the rights of the creditors to whom
payments have been made.
Putney v. Bryan, 142 Ga. 118 (1914) Graves v. Carter, 208 Ga. 5, 6(3)(4) (1951)
60.000 TORTS
60.001 Torts Introduction The case before you is (a tort case) (one) in which the plaintiff must prove by a preponderance of the evidence that the negligence of the defendant, if any, was a proximate
cause of the injuries to the plaintiff.
60.010 Torts; Ordinary Negligence (Ordinary Diligence)
Ordinary negligence means the absence of or the failure to use that degree of care that is used by ordinarily careful persons under the same or similar circumstances. Before a plaintiff can recover damages from a defendant in a case such as this, there must be injury to
the plaintiff resulting from the defendant’s negligence. O.C.G.A. §51-1-2
(See also 60.200, Torts; Promixate Cause; Definition.)
60.020 Torts; Slight Negligence (Extraordinary Diligence)
In general, extraordinary diligence or care is the extreme care and caution that very careful and thoughtful persons use under the same or similar circumstances. (Applied to the preservation of property, extraordinary diligence or care means the extreme care and caution that very careful and thoughtful persons use in securing and preserving their own property.)
The absence of such extraordinary diligence or care is termed slight negligence.
O.C.G.A. §51-1-3
60.030 Torts; Gross Negligence (Slight Diligence)
In general, slight diligence or care is the degree of care that persons of common sense, however inattentive they may be, use under the same or similar circumstances. (Applied to the preservation of property, slight diligence or care means the degree of care that persons of common sense, however inattentive they may be, take of their own property.) The absence
of slight care is termed gross negligence.
O.C.G.A. §51-1-4
60.040 Torts; Children, Due Care by The term due care, when used in reference to a child of tender years, is such care as the child’s mental and physical capabilities enable the child to exercise in the actual
circumstances of the occasion and situation under investigation.
O.C.G.A. §51-1-5 Ashbaugh v. Trotter, 237 Ga. 46 (1976); child six years three months must use due care Sturdivant v. Polk, 140 Ga. App. 152, 154 (1976); child under 14 years of age
bound is to exercise care according to age and capacity
Lequire v. Youmans, 147 Ga. App. 174 (1978)
60.050 Torts; Negligence Per Se The plaintiff contends that the defendant violated certain laws or ordinances (name them). Such violation is called negligence per se, which means negligence as a matter of law. It is
your duty to decide whether such violation took place or not.
Central R.R. & Banking Co. v. Smith, 78 Ga. 694 (1886) Wilson v. Georgia Power & Light Co., 200 Ga. 207, 208 (1946) Ford Motor Co. v. Carter, 141 Ga. App. 371, 374; 239 Ga. 647, 662 (1977)
(See also 60.200, Torts; Proximate Cause; Definition.)
2 Updated January 2019 Torts
60.060 Torts; Negligence; One Act Sufficient
The plaintiff must prove that the defendant was negligent in one or more ways alleged in order to recover. It is not necessary for the plaintiff to prove that the defendant was negligent in every way that the plaintiff claims. If you find no negligence at all on the part of the
defendant, then the plaintiff’s case against the defendant ends. General Seat, etc., Co. v. Bergen & Sons Inc., 91 Ga. App. 431-33 (1955)
(See also 60.200, Torts; Proximate Cause; Definition.)
60.110 Torts; Care for Own Safety, Duty to Exercise
Every person has a duty to use ordinary care for his or her own safety. If you should determine from the evidence that the plaintiff failed to use ordinary care and that this failure was the sole proximate cause of the plaintiff s injuries, then the plaintiff could not recover
from the defendant.
Southland Butane Gas Co. v. Blackwell, 211 Ga. 665 (1955)
60.120 Torts; Avoidance of Consequences
If the plaintiff, by the exercise of ordinary care, could have avoided the consequences caused by the defendant’s negligence, then the plaintiff is not entitled to recover. In other cases, the defendant is not relieved even though the plaintiff may have contributed to the injury sustained. The plaintiff s duty to exercise ordinary care to avoid the consequences of the defendant’s negligence does not arise until the defendant’s negligence exists and the
plaintiff knew or, in the exercise of ordinary care, should have known of such negligence.
O.C.G.A. §51-11-7
60.130 Torts; Assumption of Risk
When a person knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care for one’s own safety, that person cannot hold another liable for injuries proximately caused by such action even though the injuries may be in part attributable to the negligence of the other person.
Torts Updated January 2019 3
Southland Butane Ga. Co. v. Blackwell, 211 Ga. 665 (1955)
Doctors Hospital of Augusta Inc. v. Poole, 144 Ga. App. 184, 185 (1977) Johnson v. Jackson, 140 Ga. App. 252, 258(5) (1976)
Little Rapids Corp. v. McCamy, 218 Ga. App. 111 (1995)
(Note: Assumption of risk does not extend to assuming the risk of the negligent act of
another.)
Vaughn v. Pleasent, 266 Ga. 862 (1996) Sutton v. Sumner, 224 Ga. App. 857 (1997) Muldovan v. McEachern, 271 Ga. 805 (1999); willful or wanton acts of a defendant
60.150 Torts; Emergency
One who is confronted with a sudden emergency that was not created by one’s own fault and is without sufficient time to determine accurately and with certainty the best thing to be done is not held to the same accuracy of judgment as would be required of that person if he/she had more time for deliberation. The requirement is that the person act with ordinary
care under all particular facts and circumstances surrounding the situation.
Savannah Electric & Power Co. v. Russo, 71 Ga. App. 397 (1944) Clackler v. Barnwell, 83 Ga. App. 515(3) (1951) Young v. Tate, 112 Ga. App. 603, 606 (1965)
60.160 Torts; Accident (Note: After 1/21/93, it is reversible error to charge jury on accident. Tolbert v. Duckworth 262 Ga. 622 [1992].)
60.170 Torts; Imputed Negligence (See 60.171-60.173.)
60.171 Torts; Imputed Negligence; Generally For the negligence of one person to be properly placed upon another, the negligent person
must be the agent of the person to whom it is attributed.
4 Updated January 2019 Torts
O.C.G.A. §51-2-1(a)
60.172 Torts; Imputed Negligence; Children In an action by an infant, the fault of the parents or of custodians selected by the parents is
not allowed to be placed upon the child.
O.C.G.A. §51-2-1(b)
60.173 Torts; Imputed Negligence; Guests The negligence, if any, of the driver would not be a defense to a suit by a guest passenger in the car against a third party for an injury, unless the driver’s negligence was the sole
proximate cause of the injury.
Fields v. Jackson, 102 Ga. App. 117, 130(7); cert. denied (1960) Pitts v. Farlow, 94 Ga. App. 314 (1956) Sheppard v. Georgia, etc., Co., 68 Ga. App. 697 (1942)
60.200 Torts; Proximate Cause; Definition
Proximate cause means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event, but if an act or omission of any person not a party to the suit was the sole proximate cause of an occurrence, then no act or omission of any party could have been a proximate cause.
When I use the expression "proximate cause," I mean a cause that, in the natural or ordinary course of events, produced the plaintiff's injury. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.] (Use the bracketed part if there is evidence of a concurring or contributing cause to
the injury or death.) J/linois v. Wilson, 935 NE2d 587 (2010)
O.C.G.A. §§51-12-3, 51-12-8, 51-12-9
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60.202 Torts; Proximate Cause; Foreseeability; Natural and Probable Consequence; Intervening Cause Rules (Chain Reaction Situation)
A defendant may be held liable for an injury when that person commits a negligent act
that puts other forces in motion or operation resulting in the injury when such other forces
are the natural and probable result of the act that the defendant committed and that
reasonably should have been foreseen by the defendant. When the injuries could not
reasonably have been foreseen as the natural, reasonable, and probable result of the original
negligent act, then there can be no recovery. If the chain reaction that resulted from the
defendant’s alleged negligence, if any, meets the above tests, then the plaintiff may recover.
Stern v. Wyatt, 140 Ga. App. 704, 705 (1976) Stapleton v. Amerson, 96 Ga. App. 471, 472 (1957)
60.210 Torts; Proximate Cause; Last Clear Chance
People are under an obligation to use ordinary care to avoid injuring others after finding them in a dangerous place, regardless of how they got there, and are liable for the failure to do so. This rule is known as the Last Clear Chance Doctrine. The Last Clear Chance Doctrine only applies when it is proved by a preponderance of the evidence that the plaintiff(s) placed himself/herself/themselves in danger because of his/her/their own negligence, the defendant actually knew of the plaintiff s (plaintiffs) danger, and the defendant had opportunity to take action to avoid the injury to the plaintiff(s) by the use of ordinary care under the conditions and circumstances that existed at that time but failed to do so. If you find such to be proved, then the failure of the defendant to use ordinary care under such circumstances to avoid the injury to the plaintiff(s) would be considered the
proximate cause of the plaintiff s (plaintiffs’) injuries.
Stallings v. Cuttino, 205 Ga. App. 581, 583 (1992) Smith v. Mobley, 185 Ga. App. 462, 463 (1987) Lovett v. Sandersville R.R. Co., 72 Ga. App. 692, 695—98, 700 (1945)
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60.220 Torts; Counterclaims; Burden of Proof, Comparative Negligence, Proximate Cause, and Damages as Applied to Verdict The defendant has filed what is known as a counterclaim; that is, the defendant claims that the plaintiff has negligently caused the defendant damage and that the plaintiff should pay for the defendant’s damage instead of the defendant paying for the plaintiff's damage. (Note: The same rules as to comparative negligence, proximate cause, and damages apply to the counterclaim that apply to plaintiff s claim. The pertinent charges on these subjects should be given and applied to the defendant, emphasizing that he/she is a plaintiff for the purpose of the counterclaim. ) If both the plaintiff and the defendant were equally negligent, then neither should recover damages from the other, and you should render a verdict in favor of the defendant
but without any damages.
60.300 Negligence Amplified; Agency; Generally Principals shall be bound for the care and loyalty of their agent in their business and shall be
bound for the neglect and fraud of their agent in the transaction of such business.
O.C.G.A. §10-6-60
60.310 Negligence Amplified; Spouse, Child, or Employee Every person shall be liable for the wrongful conduct or torts committed by a spouse, a child, or an employee by direction or in the prosecution and within the scope of the person’s
business, whether the same are committed by negligence or voluntarily.
O.C.G.A. §51-2-2
60.320 Negligence Amplified; Willful Torts An employer is liable for the willful torts or willful wrongful conduct of an employee
committed in the course of the employment.
Columbus Railroad Co. v. Woolfolk, 128 Ga. 631(3) (1907) Ford v. Mitchell, 50 Ga. App. 617 (1935)
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If an employee should do something in furtherance of a lawful direction given by the employer, the employer would be liable for any injury suffered by another, whether caused by the employee’s negligence or by the wanton and reckless conduct of the employee in an
attempt to accomplish the employer’s business in an unlawful manner.
Southern Railway Co. v. James, 118 Ga. 840(2) (1903) Ledman v. Calvert Iron Works Inc., 92 Ga. App. 733, 735 (1955)
60.330 Negligence Amplified; Employees, When Employer Not Liable for
If an employee should injure another person either negligently or on purpose but at the time of the injury, is not engaged in the employer’s business and is not within the scope of the employment, then the employee’s negligence or misconduct would not be chargeable to the
employer.
Broome v. Primrose Tapestry Mills Inc., 59 Ga. App. 70 (1938) Henderson v. Nolting, etc., Corp., 184 Ga. 724 (1937)
This condition is true even when the employee commits a tort or wrongful act while the employee is working on the job because if the commission of the tort or wrongful act
had no reference to or connection with the job, then the employer would not be liable.
Atlanta, etc. v. Lawrence, 38 Ga. App. 497 (1928) Community Theatres Co. v. Bentley, 88 Ga. App. 303, 305 (1953)
60.340 Negligence Amplified; Family Purpose Doctrine
When a member of a family provides an automobile for the use, comfort, pleasure, enjoyment, and convenience of members of the family living in the same home, that person is liable for the negligent acts of every member of that family who live in the same home
and use the car for these purposes.
Hubert v. Harpe, 181 Ga. 168 (1935); relationship to owner, adult son
Levy v. Rubin, 181 Ga. 187 (1935); relationship to owner, sister
Goldstein v. Johnson, 64 Ga. App. 31 (1940); relationship to owner, husband Hexter v. Burgess, 52 Ga. App. 819 (1936); relationship to owner, wife
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Ficklen v. Heichelheim, 49 Ga. App. 777 (1934); holding that car owner does not have to be head of household
Bailey v. Butler, 199 Ga. App. 753 (1991)
Simmons v. Hill, 242 Ga. App. 22 (2000); child must live at parents’ residence.
The fact that a person lives in the same place and is a member of the same family as a car owner does not, however, make the owner automatically liable for the use of the car under the family purpose doctrine. If the user of the car has his/her own car or uses the car without permission or for some reason is not one of the persons in the family ordinarily
allowed to use the car, this principle would not apply.
Brown v. Porto, 106 Ga. App. 226 (1962); relationship to owner, daughter
Grahl v. McMath, 59 Ga. App. 247 (1938); relationship to owner, minor son
Bryant v. Keen, 43 Ga. App. 251 (1931); relationship to owner, son-in-law
Dougherty v. Woodward, 21 Ga. App. 427 (1917); relationship to owner, son aged 20 years
Marques v. Ross, 105 Ga. App. 133 (1961); relationship to owner, adult son; the test at all times is whether the person driving the car was the agent of the owner under the facts of the case.
Durden v. Maddox, 73 Ga. App. 491 (1946)
Medlin v. Church, 157 Ga. App. 876 (1981)
McCray v. Hunter, 157 Ga. App. 509 (1981)
60.350 Negligence Amplified; Independent Contractor The employer generally is not responsible for torts committed by the employee when the employee exercises an independent business and is not subject to the immediate direction
and control of the employer. O.C.G.A. §51-2-4
(The following exceptions should not be charged except as they may apply to the facts.)
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An employer is liable for the negligence of the contractor
a) when the work is wrongful in itself or, if done in the ordinary manner, would result in a nuisance;
b) if, according to the employer’s previous knowledge and experience, the work to be done is in its nature dangerous to others, however carefully performed;
c) if the wrongful act is the violation of a duty imposed by express contract upon the employer;
d) if the wrongful act is the violation of a duty imposed by statute;
e) if the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of employer and employee or so that an injury results that is traceable to the employer’s interference; or
f) if the employer ratifies or approves the unauthorized wrong of the independent
contractor. O.C.G.A. §51-2-5
The real test by which to determine whether a person was acting as the employee of another at the time of injuring someone is to determine whether at that particular time that person was subject to the other person’s orders and control and was liable to be discharged
from the particular employment for disobedience of orders or misconduct.
Bibb Mfg. Co. v. Souther, 52 Ga. App. 722 (1935) Redd v. Brisbon, 113 Ga. App. 23, 24 (1966)
60.400 Dangerous Instrumentalities (See 60.410-60.420. )
60.410 Dangerous Instrumentalities; Entrusting to Others One who knowingly entrusts or gives a dangerous instrumentality to another person who is not competent to use it is legally responsible for injuries to third persons that result from its
negligent use by the person.
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38 AM. JUR. Negligence §86 (p. 746)
This rule applies to a person who lends an automobile to someone who is under the
influence of intoxicating liquor or drugs.
Graham v. Cleveland, 58 Ga. App. 810(2) (1938) Hines v. Bell, 104 Ga. App. 76, 82 (1961)
Young v. Kickliter, 213 Ga. 42, 43 (1957)
Brown v. Sheffield, 121 Ga. App. 383 (1970)
60.420 Dangerous Instrumentalities; Use, Generally One is under a legal duty to use a dangerous instrumentality with a degree of care in
proportion to the danger of the instrumentality.
38 AM. JUR. Negligence §85 (p. 744) Lee v. Georgia Forest Products Co., 44 Ga. App. 850, 852 (1932) Milton Bradley Co. v. Cooper, 79 Ga. App. 302 (1949)
60.500 Animals, Injuries by; Generally A person who owns or keeps a vicious or dangerous animal of any kind and who by careless management or by allowing the animal to run free causes injury to another person who does
not provoke the injury may be liable in damages to the person injured.
O.C.G.A. §51-2-7 Sutton v. Sutton, 145 Ga. App. 22, 25 (1978); bull case
60.510 Animals; Knowledge of Viciousness
If such injury is a result of the vicious or dangerous character of the animal, the owner or keeper may be liable to the person injured. However, proof that the owner or keeper had knowledge of the animal’s vicious or dangerous character is an essential element for finding
liability.
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You may infer that an owner or keeper had such knowledge if you find there was at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury.
In proving vicious or dangerous character or propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.
O.C.G.A. §51-2-7
Weinstein v. Harvey, 344 Ga. App 391 (2018)
Rodrigues v. Newby et al., 131 Ga. App. 651, 653(2) (1974); horse Connell v. Bland, 122 Ga. App. 507, 512 (1970)
Harvey v. Buchanan, 121 Ga. 384 (1904)
Latimer v. Kieffer, 99 Ga. App. 642, 648 (1959)
60.600 Invitees (See 60.610—60.630. )
60.610 Invitees; Definition
A person who enters the premises of another for any purpose connected with the business of the owner or occupier is an invitee, and the owner or occupier of the premises owes that person the duty to exercise ordinary care in keeping the premises safe. That duty would extend to all portions of the premises that are reasonably necessary for the invitee to use in
the course of the business for which the invitation was given.
Coffer v. Bradshaw, 46 Ga. App. 143(6) (1932) Higdon v. Georgia Winn-Dixie Inc., 112 Ga. App. 500, 504 (1965) Fender v. Colonial Stores Inc. et al., 138 Ga. App. 31, 36 (1976)
60.620 Invitees; Duty to When the owner or occupier of land, by express or implied invitation, induces or leads
others to come upon the premises for any lawful purpose, then the owner is liable in
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damages to such persons for injuries caused by the failure to exercise ordinary care in
keeping the premises and approaches safe.
O.C.G.A. §51-3-1 Sutton v. Sutton, 145 Ga. App. 22, 24 (1978); includes animals or ill-tempered
individuals likely to inflict harm upon invitees visiting upon premises
60.625 Invitees; Actual or Constructive Knowledge
While not an insurer of the invitee's safety, the owner/occupier is required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge. The owner/occupier owes persons invited to enter the premises a duty of ordinary care to have the premises in a reasonably safe condition and not expose the invitees to unreasonable risk (or to lead them into a dangerous trap). The owner/occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. The true ground of liability is the owner/occupier's superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property. It is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted.
In order to prevail, the person injured, the plaintiff, must prove by a preponderance of the evidence that the owner/occupier, the defendant, had actual or constructive knowledge of the hazard and that the plaintiff lacked knowledge of the hazard or for some reason, attributable to the defendant, was prevented from discovering it. To establish constructive knowledge, the plaintiff must show that (1) the defendant or the defendant’s employee was in the immediate area of the hazard and could have easily seen the substance or (2) the foreign substance remained long enough that ordinary diligence by the defendant or the defendant’s employees should have discovered it. Constructive knowledge may be inferred by you, the jury, when there is evidence that the owner lacked a reasonable inspection procedure, but if the plaintiff produces no evidence that the substance could have been discovered during a reasonable inspection, then no inference arises that the defendant's
failure to discover the defect was the result of any alleged failure to inspect.
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Alterman Foods v. Ligon, 246 Ga. 620 (1980)
Robinson v. Kroger Co., 268 Ga. 735 (1997)
Chastain v. CF Georgia North DeKalb, LP, 256 Ga. App. 802 (2002) Pirkle v. Quiktrip Corp., 325 Ga. App. 597 (2014)
60.630 Invitees; Implied Invitation An implied invitation is one that is extended because of the owner doing something or permitting something to be done, fairly indicating to the person entering that the entry and
use of the property is consistent with the intents (or interests) and purposes of the owner.
Coffer v. Bradshaw, 46 Ga. App. 143, 148 (1932) Smith v. Jewell Cotton Mill, 29 Ga. App. 461 (1923) Bryant v. Rushing, 121 Ga. App. 430, 434 (1970)
60.700 Licensees (See 60.710-60. 730. )
60.710 Licensees; Definition
A licensee is a person who
1) is not a customer, employee, or trespasser; 2) does not stand in any contractual relation with the owner of the premises; and 3) is permitted expressly or impliedly to go on the premises merely for his/her own
interests, convenience, or gratification.
O.C.G.A. §51-3-2 Cobb v. First National Bank of Atlanta, 58 Ga. App. 160 (1938)
60.720 Licensees; General Test The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had business relations with the owner of the premises that
would cause his/her presence to be beneficial to both. In the absence of some relationship
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with the owner or occupier of the premises, no invitation may be implied, and the injured
person must be regarded as a licensee.
Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490, 492 (1923) Hyde v. A. and W. P. Railroad Co., 47 Ga. App. 139 (1933) Rodrigues v. Newby et al., 131 Ga. App. 651, 653(1) (1974)
60.730 Licensees; Duty to A licensee enters on the premises at his/her own risk, and the owner owes the licensee no duty as to the conditions of the premises, except that the owner should not knowingly let the
licensee run into a hidden peril or willfully or wantonly cause him/her injury.
O.C.G.A. §51-3-2 Clark v. Rich’s Inc., 114 Ga. App. 242 (1966) Kahn v. Graper, 114 Ga. App. 572, 577 (1966)
60.750 Trespassers; Definition; Duty to
A trespasser is one who goes upon private premises without the permission or consent of the owner or person in charge. One continues to be a trespasser even though the owner or person in charge may know that it is that person’s custom to come upon the premises.
As a general rule, one is not bound to anticipate the presence of trespassers on private property, and the owner or person in charge of the property owes no duty to keep the premises in a condition safe for trespassers who enter without the knowledge of the owner or person in charge.
The owner of the premises owes no duty to a trespasser until after his/her presence is actually known and then only owes the trespasser the duty not to willfully or wantonly injure him/her.
(See exceptions as to children, Holcomb v. Ideal Concrete Co., 140 Ga. App. 857, 858 [1976].)
Rowland v. Byrd, 57 Ga. App. 390 (1938) Rawlins v. Pickren, 45 Ga. App. 261 (1932) Norris v. Macon Terminal Co. et al., 58 Ga. App. 313(2) (1938)
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60.800 Res Ipsa Loquitur When something unusual and unexplained happens with respect to a thing or instrumentality over which the defendant has exclusive control, an inference may arise that the injury was due to the defendant’s negligence. The inference may or may not be drawn by you, but in any event it would be a question of fact for you to determine under all the surrounding facts and circumstances as you find them to have existed at the time and place of the occurrence. Should you draw an inference of negligence under the doctrine of res ipsa loquitur from the manner of the occurrence or the circumstances of the occurrence, the drawing of such inference is not necessarily to result in a finding for the plaintiff or to eliminate a finding for the defendant. It is your duty to further inquire about whether the inference has been overcome by satisfactory explanation. The inference that you may draw from the proved facts is circumstantial evidence only, which you have for consideration along with all other evidence in the case. It is your duty to weigh this evidence along with all other
evidence and determine where the preponderance of evidence lies.
Hotel Dempsey Co. v. Miller, 81 Ga. App. 233, 234 (1950)
Chenall v. Palmer Brick Co., 117 Ga. 106 (1903)
Palmer Brick Co. v. Chenall, 119 Ga. 837 (1904)
Atlanta Coca-Cola Bottling Co. v. Burke, 109 Ga. App. 53, 64 (1964)
(Note: Application of this principle requires careful study of the peculiar facts of
each case as well as adjustment of the exact language of the charge.)
Atlanta Coca-Cola v. Ergle, 128 Ga. App. 381 (1973) Fender v. Colonial Stores Inc., 138 Ga. App. 31 (1976)
60.900 Settlement of Torts If the tort or legal wrong complained of does not amount to a crime, the person injured may consent to a satisfaction and settlement of it. If it does amount to a crime, the person injured
may agree upon and receive compensation for the personal injury. O.C.G.A. §51-11-20
(The following charge should not be given unless authorized by the facts.)
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Any attempt to satisfy the crime or to suppress a prosecution for it is illegal and destroys the entire agreement, except in those cases in which the law expressly allows such a
settlement. O.C.G.A. §51-11-20(b)(2)
(The following rule applies unless it comes into conflict with the preceding sentence.) One having a right of action on account of injury to one’s person or injury to or the death of another or damage to property may enter into a contract in settlement and satisfaction of it, and when executed, such a contract will bar an action on account of the injury. Western, etc., Railroad Co. v. Burke, 97 Ga. 560 (1895) Drew v. Lyle, 88 Ga. App. 121, 124 (1953) Wheat v. Montgomery, 130 Ga. App. 202 (1973) Daniel v. Conrad, 242 Ga. 119 (1978)
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62.000 TORTS; SPECIFIC
62.001 Malicious Prosecution
(See 62.010-62.020.)
62.010 Malicious Prosecution; Generally A criminal prosecution, maliciously carried on and without any probable cause that which
damages the person prosecuted shall give that person a cause of action. O.C.G.A. §51-7-40
Whether there was probable cause is for you to decide. Lack of probable cause shall exist when the circumstances are such that a reasonable person would believe that the
accuser had no reason for proceeding except the desire to injure the person accused. O.C.G.A. §51-7-43
(Note: Want of probable cause is a question for the jury, but when the material facts are not in dispute, the existence of probable cause for the prosecution is a question of law
for determination by the court.) Williamson v. Alderman, 148 Ga. App. 297, 298(1) (1978)
Probable cause exists when the facts and circumstances are such as would cause a reasonable mind acting on the facts known to the prosecutor to believe that the person
charged was guilty of the crime for which he/she was prosecuted.
Tanner-Brice Co. v. Barrs, 55 Ga. App. 453 (1937) Barber v. Addis, 113 Ga. App. 806, 807 (1966) West v. Baumgartner, 228 Ga. 671 (1972)
Smith v. Ragan, 140 Ga. App. 33 (1976)
62.020 Malicious Prosecution; Advice of Counsel Acting upon the advice of counsel will not protect the defendant in a suit for a malicious
prosecution, but you may consider it in determining the question of malice and probable
cause. If you should find that the plaintiff is entitled to recover, you may consider it in
mitigation of damages.
Fox v. Davis, 55 Ga. 296, 298(3) (1875) Campbell v. Tatum, 71 Ga. App. 58, 61 (1944)
62.100 False Imprisonment (See 62.110-62.120.)
62.110 False Imprisonment; Generally False imprisonment consists in the unlawful detention of another, for any length of time,
whereby the person is deprived of personal liberty and freedom. O.C.G.A. §51-7-20
The only essential elements in a suit for false imprisonment are detention of the person of the plaintiff without his/her consent and its unlawfulness. Therefore, if one should detain another without the person’s consent and that detention was without the authority of
law, the person detained would be entitled to recover.
Westberry v. Clanton, 136 Ga. 795(4) (1911) Atlantic Coast Line Railroad Co. v. Wagner, 90 Ga. App. 267, 277 (1954)
62.120 False Imprisonment; Warrant, Authority of If the imprisonment is by virtue of a warrant, neither the party in good faith issuing out the warrant nor the officer who in good faith executes it shall be guilty of false imprisonment, even though the warrant is defective in form or is void for lack of jurisdiction. In such cases, the good faith of these persons must be determined from the circumstances.
The same is true of the judicial officer issuing the warrant. However, the presumption is always against the judicial officer as to good faith when there is no jurisdiction.
O.C.G.A. §51-7-21
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62.200 Malicious Arrest (See 62.210-62.240. )
62.210 Malicious Arrest; Generally An arrest under process of law, without probable cause, when made maliciously, shall give a
right of action to the party arrested. O.C.G.A. §51-7-1
An action for malicious arrest is based upon an arrest in a civil action under process of law but maliciously and without probable cause. To authorize a recovery, it must appear that the plaintiff was arrested under some kind of process in a civil action, that the action was brought maliciously and without probable cause, and that the prosecution terminated in
favor of the plaintiff.
Waters v. Winn, 142 Ga. 138 (1914)
Mathews v. Murray, 101 Ga. App. 216, 218 (1960)
Stephens v. Big Apple Supermarket, 130 Ga. App. 841, 843(3) (1974) Oden & Sims v. Thurman, 165 Ga. App. 500, 503 (1983)
62.220 Malicious Arrest; Malice, Defined Malice may consist in personal spite or in a general disregard of the right consideration of
people directed by chance against the individual injured.
O.C.G.A. §51-7-2
62.230 Malicious Arrest; Probable Cause, Want of Want, or lack, of probable cause shall exist when the circumstances satisfy a reasonable person that the accuser had no ground for proceeding but a desire to injure the accused.
Whether or not there is probable cause is for you, the jury, to decide.
O.C.G.A. §51-7-3
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62.240 Malicious Arrest; Exempt Persons, Arrest of The willful arrest, under civil process, of a person exempt by law from such arrest shall be
deemed malicious until the contrary is proved. O.C.G.A. §51-7-4
(Note: Among persons exempt from arrest under certain circumstances are members of Congress, electors, members of the General Assembly, militiamen [O.C.G.A. §17-4-2], and witnesses [O.C.G.A. §24-10-1]. As to the liability of the owner of a mercantile establishment for false arrest or imprisonment, see O.C.G.A. §51-7-60. The law as to malicious prosecution is substantially the same as that as to malicious arrest.)
(See Waters v. Winn, 142 Ga. 138 [1914]. See also 62.000 et seq., Malicious
Prosecution.)
62.300 Physician, Skill Required of A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of the profession a reasonable degree of care and skill. Any injury
resulting from a want of such care and skill shall be an act for which a recovery may be had. O.C.G.A. §51-1-27
This standard, when applied to the facts and circumstances of any particular case, must be of such degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally.
If a physician or surgeon in the treatment and care of a patient should use that degree of care and skill ordinarily employed by the profession generally under similar conditions and like surrounding circumstances, then the physician or surgeon would not be negligent; therefore, there could be no finding of malpractice. If, on the other hand, the doctor should fail to use such degree of care and skill, the doctor would be negligent, and if injury resulted
because of such failure, the doctor would be liable for such injury as a result of malpractice.
Hinkle v. Smith, 12 Ga. App. 497 (1913) Mills v. Emory, 114 Ga. App. 63 (1966) Simpson v. Dickson, 167 Ga. App. 344 (1983)
4 Updated January 2018 Torts; Specific
The presumption in such cases is that the services were performed in an ordinarily skillful manner. The person claiming an injury may overcome this legal presumption by introducing evidence that the physician (or other medical professionals) did not treat the patient in an ordinarily skillful manner. Expert testimony is usually required to overcome the presumption, and the burden is on the one claiming injury to show a lack of due care and
skill by a preponderance of the evidence. Beach v. Lipham, 276 Ga. 302 (2003)
In order for the plaintiff to show that the defendant’s alleged negligence was the proximate cause of the plaintiff s injury, the plaintiff must present expert testimony. An expert’s opinion on the issue of whether the defendant’s alleged negligence caused the plaintiff s injury cannot be based on speculation or possibility. It must be based on reasonable medical probability or reasonable medical certainty. If you find that the expert’s testimony regarding causation is not based on reasonable medical probability or reasonable medical certainty, then the plaintiff has not proved that the plaintiff’ s injury was proximately caused by the defendant’s alleged negligence, and you would return a verdict for the
defendant.
Zwiren v. Thompson, 276 Ga. 498, 503 (2003)
62.310 Common Knowledge; Expert Not Required
However, expert testimony is not required when the facts show that the alleged negligence caused the injury and it would be a matter of common knowledge and observation
that such an injury would not have occurred if the medical service had been performed with ordinary skill and care.
In such cases, expert medical testimony is not required.
Killingsworth v. Poon, 167 Ga. App. 653 (1983)
62.311 Physician, Skill Required; After-Acquired Information; Hindsight (Consider whether this point is adequately covered by the general charge under 62.300 in view of Smith v. Finch, 285 Ga. 709 (2009).)
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In a medical malpractice action, a defendant cannot be found negligent on the basis of an assessment of a patient's condition that only later, in hindsight, proves to be incorrect as long
as the initial assessment was made in accordance with reasonable standards of medical care.
McNabb v. Landis, 223 Ga. App. 894 (1996) Haynes v. Hoffman, 164 Ga. App. 236, 238 (1982)
62.320 Hospital; Degree of Care
A hospital owes to its patients the duty of using ordinary care to furnish equipment and facilities reasonably suited to the uses intended and such as are in general use under the same, or similar circumstances in hospitals of approximately the same size serving similar
areas or communities.
Smith v. Hospital Authority of Terrell County, 161 Ga. App. 657 (1982); cert. denied Wade v. Archbold Hospital, 166 Ga. App. 487 (1983); cert. applied for
62.400 Attorney, Skill Required of The initial requirement for establishing liability in a case of this type is that there be a duty. This duty arises from the attorney-client relationship.
If it has been shown that an attorney-client relationship exists, the attorney has a duty to use such ability, care, and skill as lawyers of ordinary skill and capacity commonly possess and use in the performance of the tasks that they undertake.
In the practice of the legal profession, there is a presumption that legal services are performed in an ordinarily skillful manner, and the burden is on the one receiving the
services to show a lack of due care and skill by the introduction of expert legal testimony.
O.C.G.A. §15-19-17 Hughes v. Malone, 146 Ga. App. 341 (1978)
(Include the following charge if applicable to the facts of the particular case.)
A client suing his/her attorney in a case not only must prove by expert legal testimony that the claim was valid and would have resulted in a judgment in the client’s favor, but also that the judgment would have been collectible in some amount, for therein
lies the measure of damages.
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The plaintiff in this case must establish the original defendant’s ability to pay a judgment had one been rendered against him/her. In this regard, it is proper for you to consider the original tortfeasor’s worldly circumstances, financial status, assets, insurance coverage, ownership, or other interest in real and personal property and the like to determine the ability of the original alleged tortfeasor to satisfy, in whole or in part, what has been determined to be the plaintiff's damages. It is this latter amount of money that determines the financial liability and responsibility of the defendant, assuming professional negligence
has been determined.
Riddle v. Driebe, 153 Ga. App. 276 (1980)
62.500 Consent to Injury (See 62.510-62.520.)
62.510 Consent to Injury; Generally As a general rule there can be no tort or legal wrong committed against a person consenting to it, if that consent is free and not obtained by fraud and is the action of a sound mind. (The following sentences of this charge should be given only if applicable to the facts.) The consent of a person incapable of consenting, such as a minor, may not affect the
right of any other person having a right of action for the injury.
O.C.G.A. §51-11-2
62.520 Consent to Injury; Railroads No person shall recover damages from a railroad company for injury done to oneself or
one’s property when the same is done by one’s consent.
O.C.G.A. §46-8-291
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62.600 Strict Liability in Tort; Products Liability (See 62.610-62.680. )
62.610 Strict Liability in Tort; General Explanation and Burden of Proof The plaintiff, (plaintiff s name), contends that he/she was injured because of a defective product manufactured by the defendant, (defendant company’s name).
The manufacturer of a product that is sold as new property may be liable or responsible to any person who is injured because of a defect in the product that existed at the time the manufacturer sold the product. However, a manufacturer of a product is not an insurer, and the fact that a product may cause an injury does not necessarily make the manufacturer liable. To recover damages under this rule, a person injured by an allegedly defective product must establish the following three elements by a preponderance of the
evidence:
1) the product was defective, 2) the defect existed at the time the product left the manufacturer’s control, and
3) the defect in the product was the proximate cause of the plaintiff’s injury.
(Choose appropriate defect[s] the jury will be charged on.)
The types(s) of product defect(s) alleged by the plaintiff is/are a manufacturing defect, a design defect, and/or a defect because of inadequate warning. There is no single general way to define what constitutes a defect in a product. Whether or not a product is defective is a question of fact to be determined by you, the jury, in each case, based on the
instruction that I will give you.
O.C.G.A. §51-1-11
Center Chemical Co. v. Parzini, 234 Ga. 868 (1975) Banks v. ICI Americas Inc., 264 Ga. 732 (1994)
S K Hand Tool Corp. v. Lowman, 223 Ga. App. 712 (1996)
62.620 Strict Liability; Manufacturing Defect; Generally A manufacturer has a duty to exercise reasonable care in manufacturing a product that is
reasonably safe for its intended or foreseeable uses. A manufacturing defect is an unintended
8 Updated January 2018 Torts; Specific
flaw or abnormal condition that occurs during the production of the product that makes the product more dangerous than it would have been had the product been manufactured properly. Such a defect may occur because of the use of shoddy materials, poor manufacturing methods, or other such actions or omissions by the manufacturer. A manufacturing defect may be indicated by comparing the questioned product to properly manufactured items in the same product line.
To conclude that a manufacturing defect exists in a product and that the plaintiff is
entitled to recover, you must find by a preponderance of the evidence that
1) the product was defective, 2) the defect existed at the time the product left the manufacturer’s control, and
3) the defect in the product was the proximate cause of the plaintiff s injury.
O.C.G.A. §51-1-11
Chrysler Corp. v. Batten, 264 Ga. 723 (1994)
Banks v. ICI Americas Inc., 264 Ga. 732 (1994)
Maleski, Georgia Products Liability, 2d ed. (1993 and 1997 supp.)
62.630 Strict Liability; Manufacturing Defect; Deviation from Design A manufacturer has a duty to exercise reasonable care in manufacturing a product that is reasonably safe for its intended or foreseeable uses. A manufacturing defect is an unintended flaw or abnormal condition that occurs during the production of the product that makes the product more dangerous than it would have been had the product been manufactured as specified. A manufacturing defect may be indicated by comparing the questioned product to properly manufactured items in the same product line.
To conclude that a manufacturing defect exists in a product and that the plaintiff is
entitled to recover, you must find by a preponderance of the evidence that
1) the product deviated from the manufacturer’s intended design or production specifications, 2) that deviation existed at the time the product left the manufacturer’s control, and
3) the deviation was the proximate cause of the plaintiff s injury.
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O.C.G.A. §51-1-11 Chrysler Corp. v. Batten, 264 Ga. 723 (1994) Banks v. ICI Americas Inc., 264 Ga. 732 (1994)
62.640 Strict Liability; Design Defect A product may be found to be defective because of its particular design. Although a manufacturer is not required to ensure that a product design is incapable of producing injury,
the manufacturer has a duty to exercise reasonable care in choosing the design for a product.
O.C.G.A. §51-1-11 Hunt v. Harley-Davidson Motor Co. Inc., 147 Ga. App. 44 (1978) Banks v. ICI Americas Inc., 264 Ga. 732 (1994)
62.650 Strict Liability; Design Defect; Risk-Utility Test and Factors
To determine whether a product suffers from a design defect, you must balance the inherent risk of harm in a product design against the utility or benefits of that product design. You must decide whether the manufacturer acted reasonably in choosing a particular product
design by considering all relevant evidence, including the following factors:
1) the usefulness of the product;
2) the severity of the danger posed by the design;
3) the likelihood of that danger;
4) the avoidability of the danger, considering the user’s knowledge of the product, publicity surrounding the danger, the effectiveness of warnings, and common knowledge or the expectation of danger;
5) the user’s ability to avoid the danger;
6) the technology available when the product was manufactured;
7) the ability to eliminate the danger without impairing the product’s usefulness or making it too expensive;
8) the feasibility of spreading any increased cost through the product’s price or by purchasing insurance;
9) the appearance and aesthetic attractiveness of the product;
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10) the product’s utility for multiple uses; 11) the convenience and durability of the product; 12) alternative designs for the product available to the manufacturer; and
13) the manufacturer’s compliance with industry standards or government regulations.
If you decide that the risk of harm in the product’s design outweighs the utility of that particular design, then the manufacturer exposed the consumer to greater risk of danger than the manufacturer should have in using that product design, and the product is defective. If after balancing the risks and utility of the product, you find by a preponderance of the evidence that the product suffered from a design defect, then the plaintiff is entitled to
recover.
Banks v. ICI Americas Inc., 264 Ga. 732 (1994)
62.660 Strict Liability; Design Defect; Alternative Design Evidence
In determining whether a product was defective, you may consider evidence of alternative designs that would have made the product safer and could have prevented or minimized the plaintiff s injury. In determining the reasonableness of the manufacturer’s choice of product
design, you should consider
1) the availability of an alternative design at the time the manufacturer designed this product;
2) the level of safety from an alternative design compared to the actual design;
3) the feasibility of an alternative design, considering the market and technology at the time the product was designed;
4) the economic feasibility of an alternative design;
5) the effect an alternative design would have on the product’s appearance and utility for multiple purposes; and
6) any adverse effects on the manufacturer or the product from using an alternative
design.
Banks v. ICI Americas Inc., 264 Ga. 732 (1994) Wilson Foods Corporation v. Turner, 218 Ga. App. 74 (1995)
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62.670 Strict Liability; Design Defect; Compliance with Industry Standards or Government Regulations In determining whether a product was defective, you may consider proof of a manu- facturer’s compliance with federal or state safety standards or regulations and industrywide customs, practices, or design standards. Compliance with such standards or regulations is a factor to consider in deciding whether the product design selected was reasonable considering the feasible choices of which the manufacturer knew or should have known. However, a product may comply with such standards or regulations and still contain a
design defect.
Banks v. ICI Americas Inc., 264 Ga. 732 (1994) Doyle v. Volkswagenwerk Artiengesellschaft, 267 Ga. 574 (1997)
62.680 Defect Due to Inadequate Warning
A manufacturer has a duty to give an adequate warning of known or reasonably foreseeable dangers arising from the use of a product. The manufacturer owes this duty to warn to all persons whom the manufacturer should reasonably foresee may use or be affected by the
product. A manufacturer’s duty to warn may be breached by
a) failing to provide an adequate warning of the product’s potential dangers or
b) failing to adequately communicate to the ultimate user the warning provided.
A product, however well or carefully made, that is sold without an adequate warning of such danger may be said to be in a defective condition. If you find by a preponderance of the evidence that the manufacturer did not warn or did not adequately warn when a warning should have been given, then you may find the product to be defective for that reason, and
the plaintiff is entitled to recover.
O.C.G.A. §51-1-11
Center Chemical Co. v. Parzini, 234 Ga. 868 (1975)
Chrysler Corp. v. Batten, 264 Ga. 723 (1994)
Wilson Foods Corporation v. Turner, 218 Ga. App. 74 (1995)
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62.681 Duty to Warn; Foreseeable and Unforeseeable Uses A product that is safe if used in a normal manner is not ordinarily a defective product. If a person uses a product in an abnormal manner and is injured because of such abnormal use, the manufacturer is not liable for such injury. However, if the manufacturer had reason to anticipate or foresee that the product might be used in this abnormal manner and that such use might result in injury and, knowing these facts, failed to give adequate warning against using the product in this manner, then the manufacturer may be held liable for the resulting injury.
Center Chemical Co. v. Parzini, 234 Ga. 868 (1975)
Wilson Foods Corporation v. Turner, 218 Ga. App. 74 (1995)
Olympia Services Inc. v. Sherwin Williams Co., 224 Ga. App. 437 (1997)
62.682 Duty to Warn; Open and Obvious Danger (The following charge should not be given in conjunction with the design defect risk-utility test charge. Ogletree v. Navistar Int’ 1 Trans. Corp., 269 Ga. 443 [1998].)
However, a manufacturer is not required to warn of danger that should be known,
obvious, or apparent to the user of the product.
Hunt v. Harley-Davidson Motor Co. Inc., 147 Ga. App. 44 (1978)
62.683 Continuing Duty to Warn
A manufacturer’s duty to warn arises when the manufacturer knows or reasonably should know of the danger presented by the use of a product. Therefore, a manufacturer has a continuing duty to adequately warn the public of defects in a product even after that product
has left the control of the manufacturer to be sold or distributed to the consumer. Chrysler Corp. v. Batten, 264 Ga. 723 (1994)
(Note: In some circumstances, the alternative design evidence charge [62.660] is
appropriate in a defect due to inadequate warning case.)
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62.700 Assumption of the Risk Defense
Every person has the duty to exercise ordinary care for his/her own safety. If a person discovers a product’s defect and is aware of the danger but nevertheless proceeds unreasonably to make use of the product, taking a risk which in and of itself amounts to a failure to exercise ordinary care for his/her safety, he/she cannot later hold another person responsible for any injury suffered due to taking such a risk. If you find by a preponderance
of the evidence that
1) the plaintiff knew of the danger posed by the defective product,
2) the plaintiff understood and appreciated the risks of that defect, and
3) the plaintiff knowingly and voluntarily exposed himself/herself to such a risk, then the plaintiff would not be entitled to recover, and you would return a verdict for the
defendant.
Center Chemical Co. v. Parzini, 234 Ga. 868 (1975) Sharpnack v. Hoffinger Industries Inc., 223 Ga. App. 833 (1996) Raymond v. Amanda Co., LTD., 925 F. Supp. 1572 (N.D. Ga. 1996)
62.710 Assumption of the Risk Defense; Products Liability
(revised—omits references to ordinary care) If a person knows of a product’s defect and is aware of the danger but nevertheless proceeds unreasonably to make use of the product, he/she cannot later hold another person responsible for any injury suffered due to taking such a risk. If you find by a preponderance
of the evidence that
1) the plaintiff knew of the danger posed by the defective product,
2) the plaintiff understood and appreciated the risks of that defect, and
3) the plaintiff knowingly and voluntarily exposed himself/herself to such a risk, then the plaintiff would not be entitled to recover for the resulting injury or damages, and
you would return a verdict for the defendant.
Center Chemical Co. v. Parzini, 234 Ga. 868 (1975) Beringause v. Fogleman Truck Lines Inc., 200 Ga. App. 822, 824 (1991)
14 Updated January 2018 Torts; Specific
Sharpnack v. Hoffinger Industries Inc., 223 Ga. App. 833 (1996) Raymond v. Amanda Co., LTD., 925 F. Supp. 1572 (N.D. Ga. 1996)
62.720 Jury Deliberation; Product Defect
If you find by a preponderance of the evidence that the product was defective when it left the control of the manufacturer and that the plaintiff s injury was proximately caused by that defect, then you would return a verdict for the plaintiff, unless the plaintiff is denied recovery under some other principle of law given to you in these charges.
If after considering all the evidence, you do not believe by a preponderance of the evidence that the product by which plaintiff claims to have been injured was defective when it left the manufacturer’s control or that the product was the proximate cause of the plaintiff s injury, then you would end your deliberations; the plaintiff would not be entitled
to recover; and you would return a verdict for the defendant.
62.730 Abusive Litigation Any person who takes an active part in the initiation, continuation, or procurement of civil
proceedings against another shall be liable for abusive litigation if that person acts
1) with malice and
2) without substantial justification. O.C.G.A. §51-7-81
The term “without substantial justification” is defined as conduct that is frivolous,
groundless in fact or in law, or intended to harass another.
O.C.G.A. §51-7-80
62.731 Abusive Litigation; Voluntary Termination
It shall be a complete defense to any claim for abusive litigation that the person against whom the claim is asserted has voluntarily withdrawn, abandoned, discontinued, or dismissed the civil proceeding, claim, defense, motion, appeal, civil process, or other position that the injured person claims constitutes abusive litigation. Termination of the
claimed abusive litigation must occur within thirty days after the mailing of the notice
15 Updated January 2018 Torts; Specific
required by O.C.G.A. §51-7-84(a) or prior to a ruling by the court relative to the civil proceeding, claim, defense, motion, appeal, civil process, or other position. This defense shall not apply when the alleged act of abusive litigation involves the seizure or interference with the use of the injured person’s property by process of attachment, execution, garnishment, writ of possession, lis pendens, injunction, restraining order, or similar process
that results in special damage to the injured person.
62.732 Abusive Litigation; Good Faith
It shall be a complete defense to any claim of abusive litigation that the person against whom the claim is asserted acted in good faith, provided that good faith shall be an affirmative defense, and the burden of proof shall be on the person asserting the actions
were taken in good faith.
62.733 Abusive Litigation; Successful Claim It shall be a complete defense to any claim for abusive litigation that the person against whom the claim is asserted was substantially successful on the issue forming the basis for
the claim of abusive litigation in the underlying civil proceeding.
O.C.G.A. §51-7-82
62.734 Abusive Litigation; Verdict for Plaintiff/Defendant Upon your consideration of the case, if you reach the conclusion that the plaintiff(s)/defendant(s) is (are) not entitled to recover, that would be the end of your
deliberations, and you should return a verdict in favor of the plaintiff(s)/defendant(s).
62.735 Abusive Litigation; Damages (See section 66.000 et seq. on tort damages charges.)
A plaintiff who prevails in an action for abusive litigation shall be entitled to all damages allowed by law as proved by the evidence, including costs and expenses of
litigation and reasonable attorney’s fees.
O.C.G.A. §51-7-83
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62.740 Negligent Construction
The plaintiff has alleged that the defendant is liable in damages for negligent construction. I charge you that an action for negligent construction arises when one fails to perform work in accordance with industry standards. From the evidence, you must first determine what the standards of the construction industry are with respect to the improvements made by the defendant for the plaintiff. You then must decide whether the defendant’s construction was done in a manner that was in conformity with those standards. If you find that the defendant failed to meet industry standards and that the failure resulted in damages to the plaintiff, you would be authorized to return a verdict for the plaintiff. If you find that the defendant met
those standards, your verdict would be for the defendant.
Fussell v. Carl E. Jones Development Co., 207 Ga. App. 521 (1993)
62.750 Duties of Financial Institution Regarding Certificates of Deposit Any financial institution that receives money from its customers in exchange for certificate(s) of deposit has a duty to issue and/or change the certificate in a manner that
complies with the wishes of the customer as long as
1) the wishes of the customer are not contrary to any applicable law and
2) the financial institution is liable to the customer (or a third-party beneficiary) for mishandling the transaction (including improperly advising the customer about how the certificate should be established or changed to comply with the wishes of the
customer).
Every financial institution that issues certificates of deposit should be knowledgeable about the applicable laws governing such certificates and should exercise ordinary care in handling its customers’ business so that customers’ wishes concerning such certificates can
be fulfilled to the extent allowed by law.
Tucker Federal Savings & Loan Ass’n v. Rawlins, 209 Ga. 649, 651 (2) (1993)
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66.000 TORT DAMAGES
66.001 Tort Damages; Preliminary Instructions
Damages are given as pay or compensation for injury done. O.C.G.A. §51-12-4
When one party is required to pay damages to another, the law seeks to ensure that the damages awarded are fair to both parties.
If you believe from a preponderance of the evidence that the plaintiff is entitled to recover, you should award to the plaintiff such sums as you believe are reasonable and just
in this case.
O.C.G.A. §51-12-9
66.010 Tort Damages; Generally; Nominal Damages Damages are given as compensation for an injury done, and generally the injury is the measure when the damages are of a character to be estimated in money. If the injury is small or mitigating circumstances are strong, only nominal damages are given.
What would be a proper amount of nominal damages is a question for you to decide
under all the facts and circumstances of the case.
O.C.G.A. §51-12-4
High Shoals Mfg. Co. v. Price, 136 Ga. 22(4) (1911)
Smith v. Overby, 30 Ga. 241, 248 (1859)
Batson v. Higginbothem, 7 Ga. App. 835, 838 (1910)
Ransone v. Christian, 56 Ga. 351(6) (1876)
Miller & Meier & Assoc. v. Diedrich, 174 Ga. App. 249, 252(3) (1985)
(Note: If the action involves contracts, O.C.G.A. §9-15-9 should be charged as to costs, and if it involves slander, assault and battery, or other personal actions, O.C.G.A. §9- 15-10 should be charged. It should be noted that a verdict of a specified sum and costs is legally interpreted as such sum including costs. Hardin v. Lumpkin, 5 Ga. 452 (1848). When
there is a plea of justification in a personal action, a verdict for the plaintiff less than $10.00
[the minimum sum necessary to carry costs] is self-contradictory and void. Conley v. Arnold, 93 Ga. 823 (1893). In other suits, such as negligence, see Saunders v. Parker, 20 Ga. App. 292 (1917); Grant v. General Baptist Convention, 1/0 Ga. App. 392 (1911).)
66.015 Tort Damages; Duty to Lessen When a person is injured by the negligence of another, he or she must mitigate his or her damages as much as is practicable by the use of ordinary care and diligence.
(Note: This does not apply in cases of positive or continuous torts. Georgia courts have defined three types of “positive and continuous torts”: (1) fraud, (2) ongoing violations of property rights, and (3) intentional torts such as assault and battery. Wachovia Bank of Georgia, NA. v. Namik, 275 Ga. App. 229, 620 S.E. 2d 470 (2005) and Georgia Law of Damages §2:9 (2008 ed.), Eric James Hertz and Mark D. Link; see Sidebar Charge
Bank for additional research.) O.C.G.A. §51-12-11
If you believe that a party has suffered damages as alleged, under the law, that party is bound to reduce those damages, as much as is practicable, by the use of ordinary care. If you believe that by the use of such care, that party could have reduced the damages, you
would determine to what extent and reduce such damages to that extent.
Mallock v. Kicklighter, 10 Ga. App. 605 (1912)
66.020 Tort Damages; Personal Property; Generally
The plaintiff seeks to recover for the alleged damages to the plaintiff s personal property a (name item). If you find that the plaintiff is entitled to recover, this property is a proper item of damages. The (amount that may be recovered) (measure) is the difference between the fair market value of the damaged property immediately before the injury and the fair market
value of the damaged item just after the damage, if any, was inflicted.
Douglas v. Prescott, 31 Ga. App. 684 (1924) Mitchell v. Mullen, 45 Ga. App. 282(5) (1932) Rutledge v. Glass, 125 Ga. App. 549 (1972); cited to note “value of property”
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66.030 Tort Damages; Personal Property; Not to Exceed Value; Items to Be Considered When the owner of personal property has undertaken to make proper and necessary repairs, the owner may establish loss in respect to that property by showing the reasonable value of labor and material used for the repairs and the amount of any permanent impairment in the value of the property after it was repaired, provided the aggregate of these amounts, together with hire on the property while it was incapable of being used, does not exceed the value of the property before injury, with interest. The value may be shown by the testimony of experts or by other testimony as to the nature of the injuries sustained and as to the material and labor supplied. Testimony as to the actual cost is admissible, such costs being a circumstance that may be considered by you in determining such value, but you are not
bound by the opinion of the witnesses.
Padgett v. Williams, 82 Ga. App. 509 (1943) Lamon v. Perry, 33 Ga. App. 248 (1924) Tapes & Things v. Evans, 133 Ga. App. 705 (1975)
66.040 Tort Damages; Expenses; Generally; Medical Expenses In all cases, necessary expenses resulting from the injury are a legitimate item of damages. As to medical expenses, such as hospital, doctor, and medicine bills, the amount of
the damage would be the reasonable value of such expense as was reasonably necessary.
O.C.G.A. §51-12-7
Georgia Power Co. v. Clark, 69 Ga. App. 273 (1943); medicine
Georgia Railway and Power Co. v. Ryan, 24 Ga. App. 290 (1919); doctor’s bill; other decisions cited to notes for “medical expenses” and “physician’s bill” following
O.C.G.A. §51-12-7
66.100 Tort Damages; Earnings, Past; Loss of Loss of earnings from the time of the alleged injury to the time of trial is a legal item of damages, and (the amount that may be recovered) (its measure) is the value of the earnings
that the evidence shows with reasonable certainty the plaintiff has lost as a result of the
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injury. You may consider what the plaintiff was making at the time of the injury, what was made since the injury, the amount customarily paid in the locality for the kind of work the plaintiff does, and similar matters. There must be some evidence before you as to the
plaintiff’ s loss.
Atlantic Coastline Railroad Co. v. McDonald, 103 Ga. App. 328, 332 (1961) Nashville, etc., Railway Co. v. Miller, 120 Ga. 453 (1904)
Western, etc., Railroad Co. v. Sellers, 15 Ga. App. 369 (1914)
Camilla Cotton Oil, etc., Co. v. Walker, 21 Ga. App. 603 (1918); and other decisions
99 66 99 66
following notes for “capacity to labor,” “charge,” “earning capacity,” and
“customary wages” following O.C.G.A. §51-12-4
66.200 Tort Damages; Earnings
(The following charges are applicable to either partial or total permanent loss of earnings.)
66.201 Tort Damages; Earnings; Loss of Future Earnings If you find that the plaintiff s earnings will be permanently (reduced) (destroyed), lost future earnings—just like lost past earnings—are to be determined on the basis of the earnings that the plaintiff will lose, and there must be some evidence before you as to the amount of such earnings.
(See citations at 66.100, Tort Damages; Earnings, Past; Loss of.)
In considering the evidence, you should take into consideration that old age generally
reduces the capacity to labor and earn money. Florida, etc., R.R. Co. v. Burney, 98 Ga. 1 (1894)
You may also take into consideration the proposition that the ability of the plaintiff to earn money could have increased during some later periods of the plaintiff s life, if it is
authorized by the evidence.
A-1 Bonding Service Inc. v. Hunter, 125 Ga. App. 173, 180 (1971) Standard Oil Co. v. Reagan, 15 Ga. App. 571, 595 (1915)
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66.202 Tort Damages; Earnings; Life Expectancy
You would also consider the life expectancy of the plaintiff. Williams v. Vinson, 104 Ga. App. 886, 893 (1961)
(See 66.300, Tort Damages; Life Expectancy.)
66.203 Tort Damages; Earnings; Average Annual Earnings (The following should be charged if mortality or annuity tables are used.)
By taking into consideration the factors as to earning capacity and life expectancy and applying them to this plaintiff’s life, you should determine what the average annual loss
of future earnings probably would have been.
66.204 Tort Damages; Earnings; Present Cash Value After you have determined the loss of future earnings, you may reduce the plaintiff’ s gross loss of future earnings to its present cash value. You would do so by using a rate of interest
of 5 percent per annum as a reduction factor.
O.C.G.A. §51-12-13 Miller v. Tuten, 137 Ga. App. 188 (1976)
(Note: For the use of annuity tables in determining loss of earnings, see the annuity
tables charge [66.303].)
66.300 Tort Damages; Life Expectancy (The following charges are applicable to either partial or total permanent loss of earnings
in wrongful death actions or if the injured party is living.)
66.301 Tort Damages; Life Expectancy; Generally You may determine the life expectancy of a person when the person’s age is shown without
any other direct evidence on the subject. In deciding this matter, you are also entitled to
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consider the evidence pertaining to the person’s health, habits, surroundings, and method of living.
Davis v. Whitcomb, 30 Ga. App. 497(16) (1923)
66.302 Tort Damages; Life Expectancy; Mortality Tables (The following should be used only if a mortality table is introduced in evidence.)
There is another way in which you may determine the life expectancy of the plaintiff. There has been introduced into evidence a copy of the _ mortality tables. If you desire to determine from this table the life expectancy of a person, look up that person’s age in one column, and across from the age column, you will find the life expectancy of a person of that age. Life expectancy shown on any such table is merely a guide that you may follow
while considering the evidence as a whole.
Savannah, etc., Railway v. Stewart, 71 Ga. 427 (1883) Augusta Railway Co. v. Glover, 92 Ga. 132, 148 (1892); and other cases cited to note “mortality tables”; subnote “conclusive” following O.C.G.A. §51-12-4
(Note: If a more elaborate charge on mortality is desired, an adaptation of the charge in Florida, etc., R.R. Co. v. Burney, 98 Ga. 1 [1894] is recommended.)
If you use the mortality tables, you should take the average annual loss of future income of the plaintiff and multiply it by the number of years of the plaintiff s life expectancy. The result will give you the probable gross loss of future earnings. You should then reduce the loss to its present cash value by using a rate of interest of 5 percent per
annum as a reduction factor.
Florida, etc., R.R. Co. v. Burney, 98 Ga. 1 (1894) O.C.G.A. §51-12-13
If you find the plaintiff s loss of future earnings is not permanent but will be reduced for some period of time into the future, you should then disregard the mortality table and award to the plaintiff damages for loss of future earnings for such temporary period as you may find.
(Note: O.C.G.A. §§24-14-44 and 24-14-45 make the American Experience Mortality Tables, the Commissioners 1958 Standard Ordinary Mortality Tables, and Annuity
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Mortality Table for 1949, Ultimate, admissible in evidence. The older Northampton, Carlisle, and Actuaries’ Mortality Tables have been recognized at least since their publication in 70 Ga. 843. Apparently any “standard” or generally accepted mortality or
annuity table, when shown by evidence to be such, may be introduced in evidence.)
Atlanta, etc., R.R. v. Johnson, 66 Ga. 259(4) (1881) Ga. Gas v. Fowler, 77 Ga. App. 675 (1948)
66.303 Tort Damages; Life Expectancy; Annuity Tables (The following should be used in connection with cases involving temporary or permanent loss of future earnings when annuity tables have been introduced in evidence.)
When you have satisfied yourselves what the average annual future loss of income of (plaintiff) (deceased) would be, you would then figure the cash value for the person’s life. In order to aid you in coming to a conclusion on that point, (number of) annuity tables are in evidence before you. An annuity is a sum a person is entitled to per year during that person’s whole life. Sometimes there is a sale of that annuity for which the present cash value of it must be determined. An award of damages for permanent loss of earnings amounts to a forced sale of lifetime earnings. This table is made to show the present cash value of an annuity, according to the age of the person entitled to an annuity. Turn to that table that is before you for the purpose of aiding you in measuring damages for loss of future earnings. Take the average annual loss of future income of (plaintiff) (deceased) and the age of the (plaintiff) (deceased). You would then consult the annuity tables and find opposite the age the present value of an annuity of $1.00 per year for the expected remaining life of a person of that age discounted at the percentage indicated, depending on which you select. You would multiply that present value of the $1.00 annuity from the table by the average annual loss of future earnings, and that would be the present cash value if the plaintiff (deceased) were recovering an annuity of that sum, or entitled to an annuity of that sum for and during that person’s remaining life. That would be the sum you are trying to arrive at.
In using your annuity table, you would be entitled to use a rate of interest of 5
percent.
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O.C.G.A. §51-12-13
Atlanta, etc., R.R. Co. v. Johnson, 66 Ga. 259, 263 (1881) Kitchens v. Hall, 116 Ga. App. 41, 43 (1967)
Florida, etc., R.R. Co. v. Burney, 98 Ga. 1 (1894)
An annuity table is based on an average length of life as shown by mortality tables from which it is figured.
You do not have to use the annuity table introduced to you in any way. Such a table is just a guide that you may follow or not as you see fit, while considering the evidence as a whole.
(See note to 66.201 Tort Damages; Earnings; Loss of Future Earnings. If a more elaborate charge on annuity tables is desired, an adaptation of the charge in Florida, etc.,
R.R. Co. v. Burney, 98 Ga. 1 [1894] is recommended.)
66.304 Tort Damages; Life Expectancy; Full Value of Life The full value of the life of the deceased, as shown by the evidence, is the full value of the life of the deceased without deduction for necessary or other personal expenses of the
deceased if that person had lived. O.C.G.A. §51-4-1
You should consider the gross sum that the deceased would have earned to the end of life had the deceased not been killed, reduced to its present cash value in determining the amount of the full value of the life of the deceased. The full value of the life of the deceased is not limited to the amount of money that could have or would have been earned had the
deceased not been killed.
Pollard v. Boatright, 57 Ga. App. 565 (1938)
Bulloch Co. Hospital Authority v. Fowler, 124 Ga. App. 242, 247 (1971) City of Macon v. Smith, 117 Ga. App. 363, 375 (1968)
Rhodes v. Baker, 116 Ga. App. 157, 162 (1967)
Elsberry v. Lewis, 140 Ga. App. 324 (1976)
(Note: The later decisions cited above would certainly seem to qualify the Pollard
case and also earlier appellate court cases, including the Bulloch case [p. 247]. It is noted
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that the Court of Appeals had tried unsuccessfully to get the Supreme Court to clarify the law. Florida, etc., R.R. Co. v. Burney, 98 Ga.1 [1894].
When at least as far as the husband or supposed wage earner of the family was concerned, the measure of damages was the gross sum that the deceased would have earned to the end of life, reduced to its present cash value. The later cases definitely hold that this factor is merely something to be considered, without fixing any ultimate test. In the Bulloch Co. case, it is pointed out [p. 247] that the Court of Appeals had unsuccessfully sought clarification of the matter by the Supreme Court. At any rate, certiorari was denied by the Supreme Court in the Bulloch case, which at least tacitly appears to accept the holding thereon.
It appears that there is now no fixed standard in the matter, and the charge reflects this state of the law. It would further seem that this lack of standard leaves the damages, at least in part, to the “enlightened conscience” of the jury, but so far no decision is found expressly holding even that much.
Code sections adopting the “full value of life” measure of damages are O.C.G.A. §§51-42, 51-4-3, and 51-4-4.)
66.400 Tort Damages; Consortium
A married person has a right to recover for the loss of consortium, sometimes called loss of services, of the spouse. You should be careful to remember that services the law refers to are not only household labor but also society, companionship, affection, and all matters of value arising from marriage. There does not have to be any direct evidence of their value, but the measure of damages is their reasonable value, as determined by the enlightened conscience of impartial jurors taking into consideration the nature of the services and all the
circumstances of the case.
Brown v. Georgia-Tennessee Coaches Inc., 88 Ga. App. 519 (1953); married woman has action for loss of consortium.
Nunnally v. Shockley, 97 Ga. App. 300 (1958)
Hobbs v. Holliman, 74 Ga. App. 735, 739 (1947)
Shepherd Construction Co. Inc. v. Vaughn, 88 Ga. App. 285 (1953)
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66.401 Tort Damages; Consortium; Permanent Loss, Present Cash Value of; Joint Life Expectancy Is Measure of Damages
When permanent loss of consortium occurs, you would determine the damages on the basis of the joint life expectancy of the husband and wife, that is, by how long they would both have lived together if the injury of the spouse had not occurred. That joint lifetime loss would have to be reduced to its present cash value.
Atlantic Coast Line R.R. Co. v. McDonald, 50 Ga. App. 856(5) (1935)
Beavers v. Davis, 110 Ga. App. 248(2) (1964)
Cody v. Peak, 113 Ga. App. 676(2) (1966)
Central Truckaway, etc., Co. v. Harrigan, 79 Ga. App. 117(4) (1949); future consortium
must be reduced to present cash value.
(Note: For reduction to cash value, see 62.200 et seq., Tort Damages; Earnings.)
66.500 Tort Damages; Pain and Suffering (See 66.501-66.504.)
66.501 Tort Damages; Pain and Suffering; Generally; Mental; Future (a) Generally
Pain and suffering is a legal item of damages. The measure is the enlightened conscience of fair and impartial jurors. Questions of whether, how much, and how long the plaintiff has suffered or will suffer are for you to decide.
Western, etc., Railroad Co. v. Young, 83 Ga. 512, 515 (1889)
Redd v. Peters, 100 Ga. App. 316 (1959)
Southern Railway Co. v. Jackson, 146 Ga. 243 (1916)
Chapman v. Western Union Telegraph Co., 88 Ga 763 (1892) (b) Mental
Pain and suffering includes mental suffering, but mental suffering is not a legal item
of damage unless there is physical suffering also.
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Williams v. Vinson, 104 Ga. App. 886, 893 (1961) Langran v. Hodges, 60 Ga. App. 567 (1939) Atlantic Coast Line Railroad Co. v. Outz, 82 Ga. App. 36, 62 (1950)
In evaluating the plaintiff’ s pain and suffering, you may consider the following factors, if proven: interference with normal living; interference with enjoyment of life; loss of capacity to labor and earn money; impairment of bodily health and vigor; fear of extent of injury; shock of impact; actual pain and suffering, past and future; mental anguish, past and future;
and the extent to which the plaintiff must limit activities.
Food Lion v. Williams, 219 Ga. App. 352 (1995).
OB-GYN Associates of Albany v. Littleton, 259 Ga. 663 (1989) Southern Railway Co. v. Jackson, 146 Ga. 243 (1916) Chapman v. Western Union Telegraph Co., 88 Ga. 763 (1892)
(Note: Subsequent cases find the charge from OB-GYN Associates overgeneralized. Subsequent cases have clarified situations in which mental suffering damages can be
collected, even without physical injury. These cases are fact specific.)
Nationwide Mutual Fire v. Lam, 248 Ga. App. 134 (2001) Lee v. State Farm Mutual, 272 Ga. 583 (2000)
(Subnote: A possible solution is to continue to use the general charge and, when appropriate, tailor a charge in which the peculiar facts fall into one of the post OB-GYN Associates exceptions.)
Damages may be recovered in those cases in which the pain and suffering are caused
by a willful or wanton act.
American Security Co. v. Cook, 49 Ga. App. 723 (1934) Stephens v. Waits, 53 Ga. App. 44 (1936)
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66.503 Tort Damages; Pain and Suffering; Future
If you find that the plaintiff s pain and suffering will continue into the future, you should award damages for such future pain and suffering as you believe the plaintiff will endure. In making such award, your standard should be your enlightened conscience as impartial jurors. You would be entitled to take into consideration the fact that the plaintiff is receiving
a present cash award for damages not yet suffered.
Southern Railway Co. v. Bottoms, 35 Ga. App. 804 (1926) Brock v. Cato, 75 Ga. App. 79, 82 (1947)
Williams v. Vinson, 104 Ga. App. 886, 893 (1961)
Shore v. Ferguson, 142 Ga. 657 (1914)
Everett v. Holmes, 126 Ga. App. 208 (1972)
66.504 Tort Damages; Pain and Suffering; Preexisting Injury; Aggravation No plaintiff may recover for injuries or disabilities that are not connected with the act or omissions of the defendant in this case. There can be no recovery for a particular plaintiff for
any injury or disability that was not proximately caused by the incident in question. Crandall v. Sammons, 62 Ga. App. 1, 5 (1940)
If you should find that, at the time of the incident, the plaintiff had any physical condition, ailment, or disease that was becoming apparent or was dormant, and if you should find that the plaintiff received an injury as a result of the negligence of the defendant and that the injury resulted in any aggravation of a condition already pending, then the plaintiff
could recover damages for aggravation of the preexisting condition.
Whatley v. Henry, 65 Ga. App. 668 (1941) Mitchell v. Turner, 89 Ga. App. 14 (1953) Garner v. Driver, 155 Ga. App. 322 (1980)
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66.600 General Tort Damages for Injury to Plaintiff’s Peace, Happiness, and Feelings
(The following charge, based on O.C.G.A. $51-12-6, which applies only to injury to the
peace, feelings, and happiness of the plaintiff, is inapplicable to cases of pain and suffering
caused by physical injury. Atlanta, etc., R.R. Co. v. Hardage, 93 Ga. 457 [1893 ].)
In a tort action in which the entire injury pertains to the peace, happiness, or feelings of the plaintiff, no measure of damages may be prescribed, except the enlightened conscience of impartial jurors.
In determining the amount of such damage, you would consider all the facts and circumstances of the case, as disclosed by the evidence, and fix a sum as you think would be
reasonable, fair, and just.
O.C.G.A. §51-12-6 Macon, etc. v. Vining, 120 Ga. 511 (1969) Atlantic, etc. v. Bowen, 125 Ga. 460 (1972)
(Note: When punitive damages are involved, see O.C.G.A. §51-12-5.1.) See Holland v. Caviness, 292 Ga 332, Footnote 3 (2013).
66.700 Punitive Liability In tort actions, there may be aggravating circumstances that may warrant the awarding or imposing of additional damages called punitive damages.
Before you may award (impose) punitive damages, the plaintiff must prove that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care that would raise the presumption of conscious indifference to consequences. The plaintiff must prove that the defendant is liable for punitive damages by a higher standard than that for proof of other damages; that is, by clear and convincing
evidence.
66.701 Clear and Convincing Evidence
(See the general charge 02.040, Clear and Convincing Evidence.)
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Clarke v. Cotton, 263 Ga. 861 (1994)
(Note: O.C.G.A. §51-12-5.1 became effective 7/1/87. For cases prior to this date, see O.C.G.A. §51-12-5.)
66.702 Punitive Liability, continued If the plaintiff fails to prove, by clear and convincing evidence, that the defendant was guilty of willful misconduct, malice, fraud, wantonness, oppression, or entire want of care that would raise the presumption of conscious indifference to consequences, then you would not be authorized to award (impose) punitive damages.
Mere negligence, although amounting to gross negligence, will not alone authorize an award (imposition) of punitive damages.
Punitive damages, when authorized, are awarded (imposed) not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant. In your verdict, you should specify whether you do or do not decide (that the plaintiff should receive) (to impose)
punitive damages.
Alliance Transp. Inc. v. Mayer, 165 Ga. App. 344, 345 (1983)
66.710 Nonproduct Liability “Cap”
Do not use these charges in a products liability case. In other cases, unless the jury finds “specific intent to harm” or a similar alcohol or drug finding (exception for proper prescribed use), punitive damages must be capped at $250,000. O.C.G.A. §51-12-5.1(f), (g). The charge is waived and the cap is imposed unless the plaintiff makes a request for the
charge and finding of fact. McDaniel v. Elliott, 269 Ga. 262 (1998).
66.711 Intent to Harm; Acting with
If you decide (You have decided) to award (impose) punitive damages,(;) you should further specify whether you find that the defendant acted with specific intent to cause harm. A party possesses specific intent to cause harm when that party desires to cause the consequences of its act or believes that the consequences are substantially certain to result from it. Intent is
always a question for the jury. It may be shown by direct or circumstantial evidence.
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66.712 Intent to Harm; Amplified
Intent is ordinarily ascertained from acts and conduct. You may not presume the defendant acted with specific intent to harm, but intent may be shown in many ways, provided you, the jury, find that it existed from the evidence produced. The jury may find such intent, or the absence of it, upon consideration of the words, conduct, demeanor, motive, and all the other
circumstances connected with the alleged act. O.C.G.A. §16-2-6
(You may presume a person of sound mind and discretion intends the natural and
probable consequences of his act. The evidence may or may not rebut this presumption.)
O.C.G.A. §16-2-5
J. B. Hunt Transport v. Bentley, 207 Ga. App. 250, 255 (1992) Brinson v. State, 163 Ga. App. 567 n. 2 (1982)
Hayes v. State, 193 Ga. App. 33, 36 (1989)
66.720 Influence of Alcohol; Drugs; Acting under
If you decide (You have decided) to award (impose) punitive damages,(;) you should further specify whether you find that the defendant acted while under the influence of (alcohol) (drugs) (intentionally consumed glue, aerosol, or other toxic vapor) to that degree that his or
her judgment is substantially impaired.
66.721 Prescription Drugs; Exception (If you find that the defendant acted under the influence of drugs, you should further specify whether such drugs were or were not lawfully prescribed drugs administered in accordance
with prescription.) O.C.G.A. §51-12-5.1(6, (g) 66.730 Nonproduct Liability “Cap”; Burden of Proof The plaintiff must prove by a preponderance of the evidence that the defendant (give the
following only as supported by evidence)
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a) acted with “specific intent” to harm,
b) acted while under the influence of alcohol,
c) acted while under the influence of drugs (and that such drugs were not lawfully prescribed or administered in accordance with prescription), or
d) acted while under the influence of intentionally consumed glue, aerosol, or other
toxic vapor to that degree that defendant’s judgment was substantially impaired.
(Note: “Uncapped” nonproduct liability punitive damages may be awarded against an active tortfeasor only. O.C.G.A. §51-12-5.1[f]. The code section does not give a definition of that term or specify how that determination should be made [i.e., by the jury or by the court upon motion] or the burden. However, in almost all instances, the determination will have been decided by the court on motion or by the jury before having gotten this far.)
(For the rare case, resume charge.) The plaintiff must prove by a preponderance of the evidence that the defendant was active, as opposed to passive, in committing the wrong
that caused the harm. Kothari v. Patel, 262 Ga. App. 168, 585 S.E.2d 97 (2003)
(Note: The jury should return the “cap” findings on a special interrogatory or verdict form. The committee suggests that the court attempt to obtain a consensus in pretrial
conference on how the cap issue will be addressed.)
Rolleston v. Estate of Sims, 253 Ga. App. 182, 187
66.740 Punitive Damages; Amount; Generally (Note: Trial shall be bifurcated.
Phase 1. The jury determines whether or not punitive damages shall be imposed. For nonproduct liability cases, Phase 1A or 2A concerns the nonproduct liability cap special findings, i.e., issues of intent, alcohol, or drugs. It is clear the trial must be bifurcated unless stipulated otherwise. There is disagreement on whether the issue of the cap findings should be included in the first phase or the second phase. There are practical and possibly tactical reasons to go either way, but no legal guidance. The committee has attempted to offer either
option.
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Phase 2. The trial resumes to receive evidence bearing upon the proper amount to deter, penalize, or punish the defendant. Then, the jury sets the amount of punitive damages to be awarded.)
You have decided to award (impose) punitive damages. Next you must determine the appropriate amount of punitive damages. In doing so, you should consider all the evidence in the first phase of the trial, plus any evidence admitted in the most recent phase of the trial. (You should also bear in mind that the plaintiff s injury has been made whole by your award of compensatory damages). The sole purpose of punitive damages is to punish, penalize, or deter the defendant, and the amount you award (impose) should reflect that purpose only.
(Note: The entire subject of punitive damages seems to be in a state of flux and is hotly disputed. These issues must be briefed by counsel and researched by the court. The main benefit of what follows is to acquaint the judge with likely issues and possible, not necessarily approved, charges. Your attention is invited to J. Scalia’s comment in dissent: “The punitive damages jurisprudence which has sprung forth from BMW v. Gore is insusceptible of principled application; accordingly, I do not feel justified in giving the case
stare decisis effect.”’)
66.741 Punitive Damages; Measure The measure of such damages is your enlightened conscience as an impartial jury (but not more than $250,000*) (but not more than /insert ratio range])** to your compensatory
award). O.C.G.A. §51-12-5.1
(Note: Both parentheticals may or may not be erroneous statements of law but may help solve the problem of the proportionality of punitive damage awards identified in the supreme court cases. See explanation below.)
* Omit cap parenthetical in all product liability cases. In addition, be aware that it has been held to be error to tell the jury that a percentage of punitives in certain cases goes to the state. O.C.G.A. §51-12-5.1(e)(2); Uniroyal Goodrich Tire Co. V. Ford, 278 Ga. App. 248; 276 Ga. 226. Although reference to the cap is distinguishable, one could argue that the
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cases suggest that it may be error to tell the jury about the cap unless stipulated by both parties. There is no guidance at present.
** Possibly the judge can obtain a range of ratios from a stipulation in a pretrial order. State Farm v. Campbell suggests using a “single-digit” ratio or not more than 9-1; and even 9-1 may only be appropriate in an exceptional case. But see Craig v. Holsey, cert. denied 3/29/04 (post State Farm), a Georgia case wherein there was an award of 22-1 ratio. The denial of certiorari is not authority, but the case, though rare, illustrates the difficulty of
the issue. These precedents may help with the proportionality problem.
66.750 Punitive Damages; Amount; Guidelines (Note: Georgia statutory law does not recognize guidelines for punitive damages. State Farm Mutual Automobile Insurance Company v. Campbell, 538 US 408; 123 S. Ct. 1513 [2003] arises from another state and has not been interpreted in Georgia as of this writing. Procedures and evidence addressed are specific to that case; however, in broad language, the opinion addresses and condemns perceived due process problems that occur in many Jurisdictions, including Georgia. The trial judge needs to be aware of its [6-3] holding and the trend that it supports. Much of its language may be dicta, but the case is perceived by many to be a bellwether case on punitive damages. The extent of the effect is not known.
The guidelines of State Farm Mutual Automobile Insurance Company v. Campbell, are written for postjudgment review, but there is strong language suggesting that postjudgment review [as has often been relied on in Georgia] may not suffice as a substitute for jury guidance and may not be adequate to comply with due process. Punishment without due process [i.e., notice of prohibited conduct and severity of punishment] is the issue, and therefore some guidance adjusted to the evidence is probably necessary. The extent of required guidance is not known. Prompted by a very strong trend in U.S. cases, Georgia case law, especially Hospital Authority of Gwinnett Co. V. Jones, has recognized the guidelines that follow. Some of these guidelines may conflict with or duplicate those suggested in State Farm v. Campbell. Adjustments to the charge have been made accordingly. )
In considering the amount of punitive damages, you may consider the following
factors:
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1)
2)
3)
4)
5)
6)
7)
8)
9)
the nature and egregiousness (reprehensibility) of the defendant’s conduct
(See 66.760, Reprehensibility; Amplified)
the extent and duration of the defendant’s wrongdoing and the (possibility) (likelihood) of its recurrence (The word “possibility” is from the opinion; substitution of “likelihood” may avoid a burden of proof conflict.)
the intent of the defendant in committing the wrong
the profitability of the defendant’s wrongdoing (Give only if supported by evidence.) the amount of actual damages awarded
the previous awards of punitive damages against the defendant (for the same or similar conduct) (Parenthetical qualifier added due to language of State Farm v. Campbell; give only if supported by evidence.)
potential or prior criminal (civil) sanctions against the defendant based upon the same wrongful acts (Give only if supported by evidence.)
the financial circumstances, that is, the financial condition and or the net worth of the defendant (Give only if supported by evidence.)
(Note: The supreme court identifies net worth an area with great potential for bias but gives no guidance for a charge or other solution. A general sympathy charge has been criticized as insufficient. Consider giving a limiting charge on sympathy and prejudice specifically addressing financial circumstances. See 66.773 Bias, Sympathy, Prejudice and 02.550 Sympathy.)
any other pertinent circumstances (Note: This catchall is from Georgia case law but
may violate due process and State Farm v. Campbell.)
Hospital Authority of Gwinnett Co. v. Jones, 259 Ga. 759, 764 (1989); reversed on other
grounds
State Farm and BMW v. Gore, 517 US 559 (1996) set the following guidelines for
review of any punitive award:
I) 2) 3)
degree of reprehensibility of the defendant’s conduct; proportionality between conduct, compensatory award, and punitive award; and comparison between the punitive award and authorized civil penalties imposed in
comparable cases.
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(Note: The potential for these issues is predictable and should be known by both counsel well in advance of trial. The committee strongly suggests that the trial judge insist, to the degree practicable, on a “high-low” agreement from counsel and/or a stipulated range of proportion between actual and punitive damages. Failing that, in pretrial conference, the judge should attempt to obtain and record consensus on how these issues
can best be met.)
66.760 Reprehensibility; Amplified (Note: Because State Farm suggests that reprehensibility is the most significant issue in determining the reasonableness of a punitive verdict, the charge below amplifies that issue. Charge 66.750, however, may suffice.)
In making your award, you should consider the degree of reprehensibility of the defendant’s wrongdoing. You should consider all the evidence, both aggravating and mitigating, to decide how much punishment the defendant’s conduct deserves. In assessing
reprehensibility, you may consider whether
a) the harm caused was physical, as opposed to economic;
b) the conduct showed an indifference to or a reckless disregard of the health or safety of others;
c) the target of the conduct had financial vulnerability;
d) the conduct involved repeated actions or was an isolated incident;
e) the harm was the result of intentional malice, trickery, or deceit (or mere accident) (The term “accident” is from the State Farm opinion and may conflict with Georgia
law; consider substituting “or was merely a consequence not specifically intended. ”’) State Farm Mutual Automobile Insurance Company v. Campbell, 538 US 408 (2003)
(Note: In addition to reprehensibility, State Farm also identifies two other main concerns. The committee can suggest no pattern charge on the other two broad State Farm issues. Proportionality is marginally addressed by section number 5 of 66.750 and the conclusion in 66.780. There are simply too many variables and unanswered questions for this issue to be addressed by a pattern charge. The supreme court declined to adopt a
“bright line ratio” and conceded that there is no rigid benchmark. Without more guidance,
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the use of the word “proportional” in a charge may provoke or raise more questions than it answers. The issue can perhaps best be addressed if the parties stipulate a proportion range, as suggested. “Penalty comparison” is marginally addressed in charge 66.750. It is not clear how the issue will be presented in evidence to a jury. The trial judge, nevertheless,
may be called upon to draft a charge on these issues.)
66.770 Limiting Instructions
(Note: Another facet of State Farm Mutual Automobile Insurance Company v. Campbell, 538 US 408; 123 S. Ct. 1513 [2003] is strong criticism of improper jury consideration of certain factors in setting the amount of punitive damages. Two factors criticized are punishment for dissimilar conduct and punishment of conduct outside the trial state, with certain exceptions. If there is no evidence of these issues in the case, limiting instructions may be unnecessary. However, they may be a wise precaution. If there is such evidence, limiting instructions must be given but may restrict consideration of the evidence for proper purposes. The language of limiting charges will likely be hotly disputed. The following are starting points only. They should be addressed in pretrial.)
66.771 Extraterritoriality (Note: This is a limiting charge where the jury has heard evidence in Phase I from other states.)
You may have heard evidence of conduct and procedures of the defendant in other states that you may properly consider on the issue of intent and reprehensibility. You may not, however, consider for the issue of punitive damages any conduct that was lawful where and when it occurred, nor in other states even though unlawful and which had no impact on (the victim) (Georgia and its residents)—
(State Farm seems to suggest that the safer approach is to use the word “victim.” However, it cites with approval broader language from BMW v. Gore that includes impact on the trial state’s residents. If the parties do not agree in the case on trial, the judge will have to choose.)
(Note: Give the following balancing charge only if there is evidence that conduct
outside the state contributed to the harm in this case.)
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(continued)—unless such conduct in the other state was related to the specific harm
suffered by the plaintiff in this case.
BMW v. Gore, 517 US 559 (1996)
66.772 Dissimilar Conduct (Note: This is a limiting charge where the jury has heard evidence in Phase I of dissimilar conduct of the defendant.)
You may have heard evidence of other conduct and procedures of the defendant. For the purpose of aggravation of punitive damages, you may not consider evidence of any conduct of the defendant that is dissimilar to that which resulted in the plaintiff s injury—
(Note: Give the following balancing charge only if there is evidence that dissimilar conduct contributed to the harm in this case.)
(continued)—unless such dissimilar conduct was related to the specific harm
suffered by the plaintiff in this case.
66.773 Bias, Sympathy, Prejudice (See 02.550, Sympathy.)
(Note: The Supreme Court, in State Farm, suggests that a “vague” charge to “avoid passion or prejudice” may be inadequate to prevent a likelihood of biased and excessive punishment because of wealth. For that reason, the pattern includes the option of specifically addressing economic status. Give 02.550 Sympathy, including specific
references to economic or corporate status and possibly residence.)
66.780 Punitive Damages; Conclusion Any award you make should be both reasonable and just in light of your previous award of damages, the conduct and circumstances of the defendant, and the purpose of punitive
damages.
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66.810 Tort Damages; Apportionment of Damages
If you believe that the plaintiff is entitled to recover and further find that the plaintiff is to some degree responsible for the injury or damages claimed, you should not make any reduction because of the negligence, if any, of the plaintiff. The court will enter a judgment based on your verdict and, if you find that the plaintiff was negligent in any degree, the court in entering judgment will reduce the total amount of damages by the percentage of negligence which you attribute to the plaintiff. If you find that the negligence of the plaintiff is equal to or greater than the negligence of the defendant(s), then the plaintiff is not entitled to recover damages.
[Use the following where there is more than one defendant. ]
If you believe that the plaintiff is entitled to recover and further find that the damages sustained by the plaintiff were caused by more than one defendant, in determining the total amount of damages to be awarded, if any, you should apportion your award of damages among the parties who are liable according to the percentage of fault of each defendant. The court will take into account, in entering judgment against any defendant whom you find to have been negligent, the percentage of that defendant’s negligence compared to the total negligence of all the parties to this action.
[Use the following where there are nonparties on the verdict form. ]
If you believe that the plaintiff is entitled to recover and further find that the damages sustained by plaintiff were caused by persons or entities who are not parties to this action, you shall consider the fault of all persons or entities whose negligence contributed to the injury or damage. In determining the total amount of damages, you should not make any
reduction because of the negligence, if any, of , who is a not a party
in this cause of action. The court, in entering judgment, will take into account your allocation of negligence among all persons (or entities) who you find contributed to the
plaintiff’ s damages.
O.C.G.A. §51-12-33; apportionment of fault of non-parties (Zaldivar v. Prickett, 297 Ga. 589 (2015); Walker v. Tensor Machinery, Ltd., 298 Ga. 297 (2015); Martin vs. Six Flags over Georgia, 301 Ga. 323 (2017))
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(The following example presents a verdict form that illustrates an approach to encompassing the principles discussed in 66.810. Obviously, the form must be adapted to the types of damages that the evidence in the case presents.)
IN THE COURT OF COUNTY STATE OF GEORGIA
)
, )
)
Plaintiff, )
)
vs. ) Civil Action No.
)
, )
)
Defendant. )
VERDICT FORM
WE, THE JURY, in the above-referenced action find as follows: (1) As to the allegations of negligence against Defendants: We, the Jury, find in favor of Plaintiff. OR We, the Jury, find in favor of Defendants. If you have found in favor of Defendants, STOP HERE. Turn the page and have the
foreperson sign the verdict form. You do not need to answer any further questions.
If you have found in favor of Plaintiff, please turn to the next page and answer questions 2 and 3.
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(2) If you have found in favor of Plaintiff, what damages, if any, do you find for
the Plaintiff for: Past Medical Expenses: $ Past Lost Wages: $ Future Medical Expenses $
Non-economic damages to include physical injury, suffering, inconvenience, and physical impairment in the past and into the future: $
TOTAL DAMAGES $
(3) If you find any of the individuals listed below, to include each party to this action as well as other persons or entities who are not parties to this action, was negligent and thereby caused or contributed to Plaintiff s injury and damages, then it is necessary for you to determine the percentage of fault for each. If you find no fault, then you should place a “0” by that name. Your allocation of fault must add up to 100%.
% Plaintiff % Defendant % Defendant
% Non-Party/Non-Parties
Please have the foreperson sign and date below.
This___ day of , 20—
Jury Foreperson
Printed Name
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66.900 Tort Damages; Chemical Damage to Crops
If you believe that the plaintiff is entitled to recover, you should look to the evidence to determine the amount of such damage. In determining such amount, you should consider the condition of the crop before the application of the chemical; its stage of development; the method of cultivation and husbandry; the probable yield of the crop had it not been damaged; its probable value at maturity had it not been damaged; the value of the damaged crop at maturity; and the cost of producing the crop. Considering all these factors, you should award to the plaintiff, if you believe plaintiff is entitled to recover, the difference between the net value of the damaged crop at maturity and the net value it would have had if it had not been damaged. By net value, I mean the amount for which the crop sold or for
which it would have sold less the cost of producing the crop.
Ayers v. John B. Daniel Co., 35 Ga. App. 511 (1926)
Kitchens v. Lowe, 139 Ga. App. 526, 531 (1976)
Farmers Mutual Exchange of Baxley v. Dixon, 146 Ga. App. 663, 665 (1978) Bass v. Carpenter, 152 Ga. App. 298 (1979)
26 Updated January 2020 Tort Damages
70.000 TROVER
70.010 Trover; Conversion; When Proof Unnecessary
Suits in trover are proceedings to recover possession of chattels (that is, personal or movable property). In such proceedings, it is not necessary to prove any conversion or demand and refusal by the defendant, if the defendant is in unlawful possession when the action is
brought.
O.C.G.A. §44-12-150
Farrar Lumber Co. v. Pickering, 22 Ga. App. 404(2) (1918); see notes on “demand” and “evidence of conversion.”
Connors v. Omni Insurance Co., 195 Ga. App. 607 (1990); cited to “general note on trover” following O.C.G.A. §44-12-171
When the defendant has come into possession of the property lawfully, there must be
a demand and refusal.
Wood v. Sanders, 87 Ga. App. 84, 86 (1952)
Colonial Credit Co. v. Williams, 95 Ga. App. 76 (1957) McDaniel v. White, 140 Ga. App. 118 (1976)
Connors v. Omni Insurance Co., 195 Ga. App. 607 (1990)
70.020 Trover; Tender at First Term; Effect on Costs
In actions for the recovery of personal property, if the defendant disclaims all title and tenders the property to the plaintiff when the defendant files an answer, together with reasonable hire for the same since the conversion, the costs of the action shall be paid by the plaintiff, unless the plaintiff proves a previous demand of the defendant and a refusal to
deliver.
O.C.G.A. §44-12-153
70.030 Trover; Verdict, Election of
The plaintiff in an action to recover personal property may elect
a) to accept an alternative verdict for the property or its value, or b) to demand a verdict for the damages alone, or
c) to have the property alone and its hire, if any.
You, the jury, shall render the verdict as the plaintiff elects, if you decide that the
plaintiff is entitled to recover.
O.C.G.A. §44-12-151
70.100 Trover; Damages, Measure of (See 70.110—70.170.)
70.110 Trover; Damages; Highest Proved Value In determining the value of personalty unlawfully detained, the plaintiff may recover the
highest amount that shall be proved between the time of the conversion and the trial. O.C.G.A. §44-12-152
When, in an action in trover, the plaintiff chooses as his/her form of recovery the highest proved value of the property between the time of conversion and the date of the trial,
the amount of the recovery may not exceed the value claimed in the petition.
Sappington v. Rimes, 21 Ga. App. 810(2) (1918) Morris v. Sheppard, 22 Ga. App. 564 (1918)
70.120 Trover; Damages; Highest Proved Value; Definition
The phrase “the highest proved value between the conversion and the trial” does not mean the highest estimate given by any witness as to the value during the period stated but means the highest value that you, from consideration of all the proof, find that the property
was worth at any time during that period, if there was a change in the value.
2 Trover
Elder v. Woodruff, 9 Ga. App. 484(2)(a) (1911) Watson v. Tompkins Chevrolet Co. Inc., 85 Ga. App. 410, 412 (1952) National Bank of Georgia v. Cut-Rate Auto Service Inc., 133 Ga. App. 635 (1974)
(Note: Jurors are not absolutely bound to accept as correct the opinions of witnesses as to the value of property, even though it may be uncontradicted by other testimony. Gwinnett Commercial Bank v. C & S Bank, 152 Ga. App. 137, 140-41 [1979], Sanders v. Robertson, 196 Ga. App. 739 [1990].)
70.130 Trover; Damages; Highest Proved Value; Hire and Interest Barred If the plaintiff elects to take the highest proved value of the property between the date the
defendant received it and the time of the trial, there can be no addition of hire or interest.
Bank of Blakely v. Cobb, 5 Ga. App. 289 (1908)
Jaques v. Stewart, 81 Ga. 81(2) (1887)
Household Finance Corporation v. Pugmire Lincoln-Mercury Inc. et al., 123 Ga. App. 428, 431(3) (1971)
70.140 Trover; Damages; Property and Hire; Valuation Date
If the plaintiff in an action in trover should elect to take a verdict for the value of the property at the time of conversion, with hire of the same from that date, and the property is of a character that hire may be recovered, you may return such a verdict, but the allowance of hire is in your discretion. If allowed, the same shall be added to the value of the property and the verdict would be for a lump sum that would include the value of the property
and hire.
White v. Dalton, 55 Ga. App. 768 (1937) Youngblood v. Ruis, 96 Ga. App. 290, 294 (1957)
70.150 Trover; Damages; Property and Hire; Interest If the plaintiff elects to take a verdict for the value of the property and interest, the value of
the property must be limited to the value proved on the date of the conversion with interest
Trover 3
from that date to the time of the trial; however, in your discretion you may or may not allow
the addition of such interest. If you allow interest, it should be added to your verdict.
White v. Dalton, 55 Ga. App. 768 (1937)
Drury v. Holmes, 145 Ga. 558 (1916)
Fussell v. Heard, 119 Ga. 527, 528 (1904)
National Bank of Georgia v. Refrigerated Transport Company Inc., 147 Ga. App. 240, 245 (1978)
(Note: Interest may be a separate item and must be charged as a separate item if
properly requested. See O.C.G.A. §9-11-49.)
70.160 Trover; Damages; Secured Property, Amount of Verdict for If the title of the plaintiff is held as security for debt and the plaintiff elects to take a money
verdict, he/she cannot recover more than the amount of the debt secured.
Elder v. Woodruff Hardware, etc., Mfg. Co., 9 Ga. App. 484 (1911) Robbins v. Welfare Fin. Corp., 95 Ga. App. 90, 93 (1957)
Kirkland et al. v. Chrysler Credit Corporation, 119 Ga. App. 759(2) (1969) William Goldberg & Co. v. Cohen, 219 Ga. App. 628 (1995)
70.170 Trover; Value; Contract Price Prima Facie Evidence of Actual Value The agreed contract price between the original purchaser and seller is prima facie evidence of actual value and, in a trover action, is sufficient in the absence of evidence to the contrary
to prove the value of the property.
Strothers Ford Inc. v. Bullock, 142 Ga. App. 843, 847 (1977) Hudson Properties Inc. v. Citizens & S. National Bank, 168 Ga. App. 331 (1983)
4 Trover
72.000 TRUSTS
72.010 Trust Definitions
“Trust” means a fiduciary relationship with respect to property arising from a settlor’s intention to impose equitable duties on a person to hold, manage, or otherwise administer that property for the benefit of another person. “Settlor” means the person who creates the trust. The terms “grantor” and “‘trustor” mean the same as “settlor.” “Beneficiary” means a person for whose benefit property is held in trust. “Trust instrument” means the document or documents that manifest the elements and other details of a trust. “Trust property” means property placed in a trust by the settlor or property otherwise transferred to or acquired or retained by the trustee for the trust. The terms trust corpus and trust res means the same as
“trust property.”
O.C.G.A. §53-12-2(1), (7), (8), (9), (10), (1)
72.100 Trusts, Express and Implied; Definition
Trusts are either express or implied. “Express trust” means a trust in which the settlor’s intention to create the trust is expressly stated and that meets the requirements stated later if applicable in this case. “Implied trust” means a trust in which the settlor’s intention to create the trust is implied from the circumstances and that meets the requirements stated later if
applicable to this case.
O.C.G.A. §53-12-2(2), (3)
72.200 Express Trusts; Requirements
An express trust shall be created or declared in writing. An express trust shall have each of the following elements, ascertainable with reasonable certainty: (1) an intention by a settlor to create a trust; (2) trust property; (3) a beneficiary; (4) a trustee; and (5) active duties
imposed on the trustee, duties of which may be specified in the writing or implied by law. O.C.G.A. §53-12-20
No formal words are necessary to create an express trust. Words otherwise precatory
in nature will create a trust only if they are sufficiently imperative to show a settlor’s
intention to impose enforceable duties on a trustee and if all other elements of an express
trust are present. O.C.G.A. §53-12-21
Precatory words are words whose ordinary significance imports entreaty,
recommendation, or expectation rather than any mandatory direction.
Raines v. Duskin, 247 Ga. 512, 523 (1981) Herring v. Dunning, 213 Ga. App. 695 (1994)
72.210 Express Trust, Capacity to Create
A person has capacity to create an inter vivos trust to the extent that person has legal capacity to transfer title to property inter vivos. A person has capacity to create a testamentary trust to the extent that person has legal capacity to devise or bequeath property
by will.
O.C.G.A. §53-12-22
72.220 Express Trusts; Purpose
A trust may be created for any lawful purpose.
O.C.G.A. §53-12-23
72.230 Express Trusts; Duration of Trust Except as otherwise provided by law, a trust shall be executory, and the legal estate shall remain in the trustee only as long as the trustee has any powers or duties in regard to the
trust property and the trust serves a material purpose of the settlor.
O.C.G.A. §53-12-26
72.240 Express Trusts; Parol Evidence When the construction of an express trust is at issue, the jury may consider parol evidence of the circumstances surrounding the settlor at the time of the execution of the trust and parol
evidence to explain all ambiguities, both latent and patent.
2 Trusts
O.C.G.A. §53-12-27
72.300 Implied Trusts; Requirements (See 72.310-—72.350.)
72.310 Implied Trusts; Generally
An implied trust is either a resulting trust or a constructive trust.
O.C.G.A. §53-12-90
72.320 Implied Trusts; Resulting Trust
A resulting trust is a trust implied for the benefit of the settlor or the settlor’s successors in interest when it is determined that the settlor did not intend that the holder of the legal title to the trust property also should have the beneficial interest in the property under any of the
following circumstances:
a) a trust is created but fails, in whole or in part, for any reason; b) a trust is fully performed without exhausting all the trust property; or
c) a purchase money resulting trust as defined (below) is established.
O.C.G.A. §53-12-91
72.330 Implied Trusts; Purchase Money Resulting Trust
A purchase money resulting trust is a resulting trust implied for the benefit of the person paying consideration for the transfer to another person of legal title to real or personal property. Such payment of consideration shall create a presumption in favor of a resulting trust, but this presumption is rebuttable by a preponderance of the evidence. However, if the payor of consideration and transferee of the property are husband and wife, parent and child, or siblings, a gift shall be presumed, but this assumption is rebuttable by clear and
convincing evidence.
O.C.G.A. §53-12-92
Trusts
(Note: If this is charged, instructions on “preponderance of the evidence” and “clear and convincing evidence” may be needed.)
In order to establish the existence of a purchase money resulting trust, one must show that such a trust was contemplated by both parties by way of an agreement that is either express or implied by the circumstances or conduct of the parties, and such an
agreement must have existed at the time the transaction was consummated.
Burt v. Skrzyniarz, 272 Ga. 37 (2000) Ford v. Ford, 243 Ga. 763, 764-765 (1979)
72.340 Implied Trusts; Constructive Trust
A constructive trust is trust implied whenever the circumstances are such that the person holding legal title to property, either from fraud or otherwise, cannot enjoy the beneficial interest in the property without violating some established principle of equity. The person claiming the beneficial interest in the property may be found to have waived the right to a
constructive trust by subsequent ratification or long acquiescence.
O.C.G.A. §53-12-93
72.350 Implied Trusts; Parol Evidence In all cases in which a trust is sought to be implied, the jury may consider oral testimony about the nature of the transaction, the circumstances, and the conduct of the parties either to
imply or rebut a trust.
O.C.G.A. §53-12-94
72.400 Trusts; Fiduciary Relationship as Creating Trust
A fiduciary, that is, an agent or other person in a confidential relationship toward someone else, cannot take advantage and profit out of the relationship or out of the knowledge obtained by it to the injury of the principal but holds any profits or other benefits gained
under the relationship as trustee for the use and benefit of the principal.
Stover v. Atlantic Ice and Coal Corp., 154 Ga. 228 (1922) Brown v. Brown, 209 Ga. 620 (1953)
4 Trusts
Sutton v. McMillan, 213 Ga. 90, 95 (1957) Franco v. Stein Steel Company, 227 Ga. 92, 95(1) (1970)
Trusts
74.000 UNDUE INFLUENCE
74.010 Undue Influence; Definition
Undue influence that voids an otherwise legal contract is the exercise of sufficient control over the person to destroy the person’s free will and compel the person to do what would not have been done if such control had not been exercised. The undue influence that will annul a contract (deed) must be of that potency that substitutes somebody else’s willpower for that
of the maker (grantor).
Burroughs v. Reed, 150 Ga. 724(1) (1920) Scurry v. Cook, 206 Ga. 876, 879 (1950) Sweat v. Hughes, 219 Ga. 703, 706 (1964) Tidwell v. Critz, 248 Ga. 201 (1981)
74.100 Undue Influence; Duress; Statutory Definition
Because the free assent of the parties is essential to a valid contract, duress by imprisonment, threats, or other acts by which the free will of the party is restrained and his/her consent is induced will render the contract voidable at the election of the injured party. Legal
imprisonment, if not used for illegal purposes, is not duress.
O.C.G.A. §13-5-6 Cannon v. Kitchens, 240 Ga. 239, 249 (1977)
74.110 Undue Influence; Duress; Harm, Threats of
Duress is considered as a species of fraud in which compulsion in some form takes the place of deception in accomplishing an injury and, like fraud, constitutes a meritorious ground to set aside a contract executed as a result thereof. Duress that will avoid a contract must consist of illegal imprisonment, legal imprisonment used for an illegal purpose, threats of bodily or other harm, or other means amounting to coercion or tending to coerce the will of another and actually inducing him/her to do an act contrary to his/her free will. The threats
must be sufficient to overcome the mind and will of a person of ordinary firmness.
Hazen v. Rich’s Inc., 137 Ga. App. 258 (1976)
Tidwell v. Critz, 248 Ga. 201 (1981)
Crockett v. Shafer, 166 Ga. App. 453 (1983)
Frame v. Booth, Wade & Campbell, 238 Ga. App. 428 (1999)
74.120 Undue Influence; Duress; Economic Duress
Economic duress is a form of the duress recognized (in the law). Business compulsion or economic duress involves the taking of undue or unjust advantage of a person’s economic necessity or distress to coerce him into making a contract and is also recognized as a contractual defense. However, a duress claim of this nature must be based upon acts or conducts of the opposite party that are wrongful or unlawful. When the signer is sophisticated in business matters and has access to and in fact obtains advice of counsel, the defense of duress is not available to void the contract. One may not void a contract on grounds of duress merely because he entered into it with reluctance, the contract is very disadvantageous to him, the bargaining power of the parties was unequal, or there was some unfairness in the negotiations preceding the agreement. (Add the following if waiver is properly raised as a defense.) (Moreover, even if acts could otherwise have been construed
as sufficient duress to void a note, reliance upon the defense of duress may be waived.)
Frame v. Booth, Wade & Campbell, 238 Ga. App. 428 (1999)
(Note: Duress, waiver, fraud, and illegality are affirmative defenses.)
O.C.G.A. §9-11-8(c); affirmative defenses O.C.G.A. §9-11-15(b); amendments to conform to the evidence
(Note: The holdings on duress were based in part upon repealed Ga. Code Ann. §96- 209 defining duress as “any illegal imprisonment, or legal imprisonment used for an illegal purpose or threats of bodily or other harm, or other means amounting to coercion or tending to coerce the will of another, and actually inducing the person to do an act contrary to his/her own free will.” King v. Lewis, 188 Ga. 597 [1939]. There is apparently no further statute on the subject except O.C.G.A. §13-5-6. The only provision on this subject in the Uniform Commercial Code, which repealed former Ga. Code Ann. §96-209, is O.C.G.A. §11-10-103, which merely says that the Uniform Commercial Code [Title 109A]
2 Undue Influence
supplements the general law on duress and various other matters except insofar as it provides otherwise. Examination of the cited cases indicated that the repealed Ga. Code Ann. $96-209 was based on general common law principles that remain valid despite its
repeal and that the older cases and charges remain valid law.)
74.200 Undue Influence; Inadequacy of Consideration
(Note: Failure of consideration is an affirmative defense.)
O.C.G.A. §9-11-8(c); affirmative defenses O.C.G.A. §9-11-15(b); amendments to conform to the evidence
74.210 Undue Influence; Inadequacy of Consideration; Generally Mere inadequacy of consideration alone will not void a contract. If the inadequacy is great, it is a strong circumstance to evidence fraud. In a suit for damages for breach of contract, the
inadequacy of consideration will always be included in estimating the damages.
O.C.G.A. §13-3-46 O.C.G.A. §23-2-133; inadequacy of price, unfair or unjust contracts in specific
performance actions
74.220 Undue Influence; Inadequacy of Consideration; Fraud as Indicated by Where an issue is made of fraud in the procurement of a contract, you may consider
inadequacy of consideration, with other facts in the case, in determining that issue. Faulkner v. Faulkner, 84 Ga. 73(2) (1889)
(Note: Although the above may be accurate on the issue of fraud, it is not quoted in Faulkner. An instruction that follows recent authority is as follows: Inadequacy of price alone is not sufficient to set aside a conveyance unless the inadequate price, taken in connection with other circumstances of a suspicious nature, raises such a vehement
presumption of fraud that you, the jury, find it sufficient to set aside the conveyance.)
Durrence v. Durrence, 267 Ga. 280 (1996) Lasater v. Petty, 220 Ga. 592 (1965); “vehement” is used consistently in these cases
Undue Influence 3
74.230 Undue Influence; Inadequacy of Consideration; When Based on Great Disparity of Mental Ability
Mere inadequacy of consideration alone will not void a contract. In order to set aside a
contract in equity, great inadequacy of consideration, joined with great disparity of mental
ability must be established.
O.C.G.A. §13-3-46 O.C.G.A. §23-2-2 Godwin v. Godwin, 265 Ga. 891; concerning erroneous jury instructions that showed
care should be taken in defining “great disparity of mental ability”
4 Undue Influence
76.000 WILLS
(Note: There was a major revision of the probate code in 1998. Probate or validity of the will is usually appealed from probate court to superior court rather than appealed concerning the construction of a will. Therefore, the charges that follow focus on this difference. Also, since usually “the construction of a will is a question of law for the court,” Bennett v. Young, 270 Ga. 422 [1999]. Rather than a jury issue, this issue is not easily or often aptly addressed by the charges.)
76.010 Wills; Generally, Definitions
“Will” means the legal declaration of an individual’s testamentary intention regarding that individual’s property or other matters. That is, a will is the legal declaration of a person’s intention as to the disposition of property or other matters after the person’s death. A will includes the will and all codicils to the will. “Codicil” means an amendment to or republication of a will. ““Testator’ means a person who has made a will, especially a person who dies leaving a will. “Beneficiary” means a person, including a trust, who is designated in a will to take an interest in real or personal property. “Executor” means any person nominated in a will who has qualified to administer a testate estate, including a person
nominated as alternative or successor executor. O.C.G.A. §53-1-2 (17), (4), (3), (7)
Black’s Law Dictionary, 7th ed. (St. Paul, MN: West Group, 1999); Black’s is the source of the definition of “testator”; also see Dean’s v. Deans, 171 Ga. 664 (1931).
76.011 Wills; Determination Whether Instrument Is a Will
No particular form is necessary to constitute a will. To determine whether an instrument is a will, the test is the intention of the maker to be gathered from the whole instrument, read in light of the surrounding circumstances. If the intention is to convey a present interest, even though the possession is postponed until after death, the instrument is not a will. If the intention is to convey an interest accruing and having effect only at death, the instrument is
a will.
O.C.G.A. §53-4-3
76.012 Wills; Power of Testator A testator, by will, may make any disposition of property that is not inconsistent with the laws or contrary to the public policy of the state and may give all the property to strangers,
to the exclusion of the testator’s spouse and descendants.
O.C.G.A. §53-4-1
76.013 Wills; When It Takes Effect A will shall take effect instantly upon the death of the testator, however long probate may be postponed.
O.C.G.A. §53-4-2
76.100 Wills; Testamentary Capacity; Minimum Age; Conviction of Crime Every person 14 years of age or older may make a will, unless the person is laboring under some legal disability arising either from a lack of capacity or a lack of perfect liberty of action.
(An individual who has been convicted of a crime shall not be deprived of the power
to make a will.)
O.C.G.A. §53-4-10
2 Wills
76.110 Wills; Testamentary Capacity; Decided and Rational Desire; Incapacity to Contract; Insanity; Advanced Age or Eccentricity Testamentary capacity exists when the testator has a rational desire as to the disposition of property. An incapacity to contract may coexist with the capacity to make a will. An insane individual generally may not make a will except during a lucid interval. A monomaniac may make a will if the will is in no way connected with the monomania. In all such cases, it must appear that the will expresses the wishes of the testator unbiased by the insanity or monomania with which testator is affected. Neither advancing age nor weakness of intellect
nor eccentricity of habit or thought is inconsistent with the capacity to make a will.
O.C.G.A. §53-4-11
76.120 Wills; Testamentary Capacity; Freedom of Volition
A will must be freely and voluntarily executed. A will is not valid if anything destroys the testator’s freedom of volition, such as fraudulent practices upon the testator’s fears, affections, or sympathies; misrepresentations; duress; or undue influence whereby the will
of another is substituted for the wishes of the testator.
O.C.G.A. §53-4-12
76.200 Wills; Execution and Attestation; Required Writing; Signing;
Witnesses; Codicil A will shall be in writing and shall be signed by the testator or by some other individual in the testator’s presence and at the testator’s express direction. A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator’s will. A will shall be attested and subscribed in the presence of the testator by two or more competent witnesses. A witness to a will may attest by mark. Another individual may not subscribe the name of a witness, even in that witness’s presence and at that witness’s direction. A codicil shall be executed by the testator and attested and subscribed by witnesses with the same
formality as a will.
O.C.G.A. §53-4-20
Wills 3
76.210 Wills; Execution and Attestation; Knowledge of Contents of Will
by Testator Knowledge of the contents of a will by the testator is necessary to the validity of a will. If the testator can read, the testator’s signature or acknowledgment of that signature is
presumed to show such knowledge.
O.C.G.A. §53-4-21
76.220 Wills; Execution and Attestation; Competency of Witness Any individual who is competent to be a witness and age 14 or over may witness a will. If a witness is competent at the time of attesting the will, the subsequent incompetence of the
witness shall not prevent the probate of the will.
O.C.G.A. §53-4-22
76.230 Wills; Execution and Attestation; Testamentary Gift to Witness or Witness’s Spouse
If a subscribing witness is also a beneficiary under the will, the witness shall be competent
but the testamentary gift to the witness shall be void unless there are at least two other
subscribing witnesses to the will who are not beneficiaries under the will. An individual may
be a witness to a will by which a testamentary gift is given to that individual’s spouse.
O.C.G.A. §53-4-23
76.240 Wills; Execution and Attestation; Self-Proved Will or Codicil
At the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, a will or codicil may be made self-proved, and testimony of the witnesses in the probate regarding such will may be made unnecessary by the affidavits of the testator
and the attesting witnesses made before a notary public (in the manner provided by law).
O.C.G.A. §53-4-24
4 Wills
76.300 Wills; Revocation and Republication; Power of Testator
A will may be changed or revoked by the testator at any time prior to the testator’s death
O.C.G.A. §53-4-40
76.310 Wills; Revocation and Republication; Intent
In all cases of revocation, the intent to revoke is necessary.
O.C.G.A. §53-4-41
76.320 Wills; Revocation and Republication; Express or Implied Revocation A revocation may be express or implied. An express revocation occurs when the testator by writing or action expressly annuls a will. An express revocation takes effect instantly.
An implied revocation results from the execution of a subsequent inconsistent will that does not by its terms expressly revoke the previous will. An implied revocation takes effect only when the subsequent inconsistent will becomes effective. If the subsequent inconsistent will fails to become effective from any cause, the implied revocation is not
completed.
O.C.G.A. §53-4-42
76.330 Wills; Revocation and Republication; Subsequent Will or Other Written Instrument An express revocation may be effected by a subsequent will or other written instrument that
is executed, subscribed, and attested with the same formality as required for a will.
O.C.G.A. §53-4-43
76.340 Wills; Revocation and Republication; Destruction or Obliteration of Will or Material Portion Thereof An express revocation may be effected by any destruction or obliteration of the will done by
the testator with the intent to revoke or by another at the testator’s direction. The intent to
Wills 5
revoke shall be presumed from the obliteration or cancellation of a material portion of the
will, but some presumption may be overcome by a preponderance of the evidence.
O.C.G.A. §53-4-44
76.350 Wills; Revocation and Republication; Revival or Republication
of Previous Will (Give instruction on 76.330, Wills; Revocation and Republication; Subsequent Will or Other Written Instrument and 76.340 before this provision. After the charge, give 76.440, Wills; Revocation and Republication; Republication of Revoked Will.)
If a will or other written instrument that expressly revoked a previous will in its entirety is revoked by a later will or other written instrument, the previous will remains revoked unless it is revived. The previous will is revived if it appears from the terms of the later will or other written instrument that the testator intended the previous will to take effect.
(Give instruction on 76.340, Wills; Revocation and Republication; Destruction or Obliteration of Will or Material Portion Thereof before this provision.)
If a will or other written instrument that expressly revoked a previous will in its entirety is revoked by an act, the previous will remains revoked unless it is revived. The previous will is revived if it appears from the circumstances of the revocation of the will or other written instrument or from the testator’s contemporaneous or subsequent declarations that the testator intended the previous will to take effect.
(Give instruction on 76.330, Wills; Revocation and Republication; Subsequent Will or Other Written Instrument before this provision.)
If a will or other written instrument that expressly revoked or amended a previous will in part is revoked by a later will or other written instrument, the revoked or amended part of the previous will is revived to the extent that it appears from the terms of the later will or other written instrument that the testator intended the previous will to take effect.
(Give instruction on 76.340, Wills; Revocation and Republication; Destruction or Obliteration of Will or Material Portion Thereof before this provision. )
If a will or other written instrument that expressly revoked or amended a previous
will in part is revoked by an act, the revoked or amended part of the previous will is revived
6 Wills
unless it is evident from the circumstances of the revocation of the will or other written instrument or from the testator’s contemporaneous or subsequent declarations that the testator did not intend the revoked or amended part of the previous will to take effect as executed.
(Give instruction on 76.330, Wills; Revocation and Republication; Subsequent Will or Other Written Instrument and 76.340, Wills; Revocation and Republication; Destruction or Obliteration of Will or Material Portion Thereof before this provision. After the charge, give 76.440, Wills; Revocation and Republication; Republication of Revoked Will.)
If a will or other written instrument that expressly revoked a previous will in whole or in part is revoked by a later will or other written instrument, or by an act, and the previous will or any revoked or amended portion is not revived in accordance with the provisions of this (instruction/code section), the previous will may be republished in whole or in part
according to law.
76.360 Wills; Revocation and Republication; Presumption of Intent A presumption of intent to revoke arises if the original testator’s will cannot be found to probate.
A copy of a will may be offered for probate in lieu of the original will if the original cannot be found, provided that the copy is proved by a preponderance of the evidence to be a true copy of the original will and that the presumption of intent to revoke is rebutted by a
preponderance of the evidence.
O.C.G.A. §53-4-46
76.410 Wills; Revocation and Republication; Effect of Implied Revocation An implied revocation extends only so far as an inconsistency exists between testamentary instruments. Any portion of a prior instrument that is consistent with the testamentary
scheme in a subsequent instrument shall remain unrevoked.
O.C.G.A. §53-4-47
Wills 7
76.420 Wills; Revocation and Republication; Effect of Testator’s Marriage or Birth or Adoption of Child; Provision in Will for Class of Children Except as otherwise provided (in the instruction that follows on the effect of the testator’s divorce, annulment, or remarriage to former spouse), the marriage of the testator; the birth of a child to the testator, including a posthumous child born within ten months of the testator’s death; or the adoption of a child by the testator subsequent to the making of a will in which no provision is made in contemplation of such event shall result in a revocation of the will. A provision in a will for a class of the testator’s children shall be presumed to be made in contemplation of the birth or adoption of additional members of that class absent an indication of a contrary intent, and the mere identification in the will of children already
born or adopted at the time of the execution of the will shall not defeat this presumption.
O.C.G.A. §53-4-48
76.430 Wills; Revocation and Republication; Effect of Testator’s Divorce, Annulment, or Remarriage to Former Spouse All provisions of a will made prior to a testator’s final divorce or the annulment of the testator’s marriage in which no provision is made in contemplation of such event shall take effect as if the former spouse had predeceased the testator, and the provisions (of law concerning the death of a beneficiary before a will is executed or before the death of a testator) shall not apply with respect to the decedents of the former spouse who are not also decedents of the testator. If the testator remarries the former spouse and the testator has not revoked or amended the will that was made prior to the divorce or annulment, the remarriage shall not result in the revocation of the will, and the provisions of the will that
were revoked solely due to the application of this code section shall be revived. O.C.G.A. §53-4-49
(Note: In many cases, O.C.G.A. $53-4-64 will also need to be charged.)
8 Wills
76.440 Wills; Revocation and Republication; Republication of Revoked Will A revoked will may be republished by a writing executed by the testator and subscribed and
attested by witnesses with the same formality required for a will.
O.C.G.A. §53-4-50
76.500 Wills; Probate; Burden of Proof
Upon the trial of an issue arising upon the propounding of a will and a caveat to it, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case by showing the fact of the will and that at the time of the execution of the will, the testator had sufficient mental capacity to make it and, in making it, acted freely and
voluntarily. Then the burden of proof shifts to the caveator.
Oxford v. Oxford, 136 Ga. 589(2) (1911) Brazil v. Roberts, 198 Ga. 477, 478 (1944) Bianchini v. Wilson, 220 Ga. 816(1) (1965)
(Note: Heard v. Estate of Lovett, 273 Ga. 111 [2000] ruled that such a burden- shifting charge is erroneous. It relied heavily on Mobley v. Lyon, 134 Ga. 125 [1910]. The four cases were used to prepare the following instruction. )
(There are two choices for this charge.)
In a proceeding to probate a will, the propounder of the will to which a caveat (objection) has been filed has the burden to prima facie prove that the will was executed with the requisite formalities freely and voluntarily by a testator who was at the time of sound mind and disposing mind and memory. Because he/she offers the will for probate, the propounder assumes the nonshifting burden of proving by a preponderance of the evidence that these issues are the necessary elements of propounder’s case. This burden of proof does not shift to the caveator to prove affirmatively that any of these necessary elements do not exist. Rather, the caveator is required only to come forward with evidence to rebut the propounder’s prima facie case on these necessary elements. So, if the propounder makes out a prima facie case, that would authorize the jury to find in his/her favor, if nothing further appeared. But if the caveator introduces evidence tending to disprove the prima facie case
made by the propounder, then the jury should consider all the evidence introduced both by
Wills 9
the propounder and the caveator (and all the surrounding circumstances) in finally determining if the propounder has satisfactorily carried his/her burden of proof.
(Or, the following.)
In a proceeding to probate a will, the propounder of the will to which a caveat (objection) has been filed has the burden to prima facie prove that the will was executed with the requisite formalities freely and voluntarily by a testator who was at the time of sound mind and disposing mind and memory. Because he/she offers the will for probate, the propounder assumes the nonshifting burden of proving by a preponderance of the evidence that these issues are the necessary elements of propounder’s case. So, if the propounder makes out a prima facie case, that would authorize the jury to find in his/her favor, if nothing further appeared. But if the caveator introduces evidence tending to rebut and disprove the prima facie case made by the propounder, then the jury should consider all the evidence introduced by both the propounder and the caveator in finally determining if the
propounder has satisfactorily carried his/her burden of proof.
Mobley v. Lyon, 134 Ga. 125 (1910) Bianchini v. Wilson, 220 Ga. 816(1) (1965) Wells v. Jackson, 265 Ga. 181 (1995)
Heard v. Estate of Lovett, 273 Ga. 111 (2000)
(Note: Burden of proof is different if the caveator has an affirmative defense. Heard v. Estate of Lovett, 273 Ga. 111 [2000]; Jones v. Cannady, 78 Ga. App. 453, 461[4] [1949]
caveator has burden of persuasion as to affirmative defense.)
10 Wills
78.000 YEAR’S SUPPORT
78.010 Year’s Support; Entitlement
The surviving spouse and minor children of a testate or intestate decedent are entitled to a year’s support in the form of property for their support and maintenance for the period of twelve months from the date of the decedent’s death. As used herein, the terms “child” or “children” mean any minor child who would be entitled to inherit if the child’s parent died intestate. It is now up to you to decide what money and property of the estate, if any, is to be
awarded as a year’s support.
O.C.G.A. §53-3-1(a), (c)
78.020 Year’s Support; Amount of Award
If objection is made to the amount or nature of the property proposed to be set aside as a year’s support, the jury shall set apart an amount sufficient to maintain the standard of living that the surviving spouse and each minor child had prior to the death of the decedent, taking
into consideration the following:
1) the support available to the individual for whom the property is to be set apart from sources other than a year’s support, including but not limited to the principal of any separate estate and the income and earning capacity of that individual;
2) the solvency of the estate; and
3) such other relevant criteria as the court deems equitable and proper.
O.C.G.A. §53-3-7(c) (Revised Probate Code of 1998); “jury” is substituted for “court.”
78.030 Year’s Support; Burden of Proof The petitioner for a year’s support shall have the burden of proof in showing the amount
necessary for a year’s support.
O.C.G.A. §53-3-7(c) (Revised Probate Code of 1998)
78.040 Year’s Support; Vesting of Title to Property Set Apart; Minor Children by Different Spouses Title to the property set apart shall vest in the surviving spouse and child or children or, if there is no surviving spouse, in the children, share and share alike, and the property shall not be administered as the estate of the deceased spouse or parent. When property is set apart as a year’s support for the benefit of the surviving spouse alone, the spouse shall thereafter own the same in fee, without restriction as to use, encumbrance, or disposition. However, if the decedent leaves minor children by different spouses, the jury shall specify the portion going to the children of the former spouse or spouses, which shall be vested in those children. Moreover, if the decedent leaves minor children and the surviving spouse is the parent of the minor children, the jury may in its discretion specify separate portions for the minor children and the surviving spouse, if the jury deems the award of separate portions to be in the best interests of the parties, and the portions shall vest separately in the surviving spouse and the
children.
O.C.G.A. §§53-3-9, 53-3-8; “jury” is substituted for “court.”
2 Year’s Support
INDEX
—-A-— Abusive litigation, 62.730 damages, 62.735 good faith, 62.732 successful claim, 62.733 verdict for plaintiff/defendant, 62.734 voluntary termination, 62.731 without substantial justification, defined, 62.730 Acceptance of gift, 28.010 Acceptance of less than amount of debt, torts, 04.030. See also Accord and satisfaction Accidents in contract, 16.221 Accord and satisfaction, 04.000 acceptance of less than amount of debt, 04.030 cashed check, 04.041 check reciting full payment, 04.040 definitions, 04.010 disputed amount, 04.020 examples, 04.010 settlement, 04.020 uncashed check, 04.042 Account, contract, 16.600 defendant must authorize, 16.620 definition, 16.610 plaintiff must prove correctness, 16.630 Account stated, contract, 16.640 by implication, 16.650 Acquiescence, 02.171 Act of God/public enemy carriers, 10.060 (see also Clear and convincing evidence) burden of proof, 10.060 definition, 08.070 Acts of agent, ratification of, 06.050 Actual or constructive knowledge, invitees, 60.625 Actual possession, prescription, 50.100 boundaries, 50.111 definition, 50.110 duration, 50.112 Adaptability, test of, 14.230 Admissions, 02.170 Adultery, 22.220, 22.025 Adverse possession, processioning, 54.040 Affirmative defenses, 00.040 Agency, 06.000 authority of agent, 06.030 business entity creation, 06.010 constructive notice, 06.080 creation, 06.010 negligence, 60.300 principal, responsibility of, extent, 06.020
proof of, 06.040
ratification of acts of agent, 06.050 burden of proof, 06.060 knowledge of principal, 06.070
Agreed line, prescription, 50.210 Air, right to, nuisance and, 46.020 Alcohol, acting under influence of, damages,
66.720
Alimony, 22.000, 22.200
adultery, 22.220 amount of, 22.240 factors, 22.240 changes in amount, 22.644 child support, 23.560 determined later, 22.300 deviation, 23.500 defined, 23.510 nonparent custodian’s income, 23.520 nonspecific, 23.585 special verdict form, 23.595 when authorized/prohibited, 23.515 DFCS Permanency Plan, 23.570 exclusions from income, 23.330 extended parenting time, 23.580 extraordinary expenses, 23.575 et seq. fringe benefits, 23.130 gross income, 23.100 special verdict form, 23.595 verdict, 23.450 health related insurance, 23.540 life insurance, 23.545 high income, 23.530 low income, 23.535 imputed income, 23.340 income from self-employment, 23.120 military compensation, 23.320 modification, 23.700 initial determination, parties not married, before trial, 23.701 initial determination, parties not married, final instruction, 23.705 number of children, 23.050 obligation, 23.001 mortgage, 23.565 tax credit, 23.550 travel expense, 23.555 underemployment, 23.350 caretaker role explained, 23.355 factors, 23.352 imputed income, 23.357 irregular or one-time income, 23.310 not for armed services, 23.359 variable income, 23.300 verdict, 23.450 deviation, 23.590
form, 23.595 coordination with nonmarital/separate property, 22.290 definitions, 22.210 desertion, 22.230 divorce, 22.641 entitlement issues, 22.210 equitable division methods, 22.170 award of percentages, 22.170 by awarding specific items, cash, 22.170 property in cash, 22.170 by specific personal property, 22.170 equitable division of property, 22.643 form of verdict, 22.644 general instructions, 22.200 in kind, 22.250, 22.644 inceptive fraud, 22.270 lump sum award, 22.644 lump sum cash, 22.250 method of payment, 22.250 partitioning, 22.280 periodic payments, 22.250, 22.644 property, defined, 22.250 resulting trust, 22.260, 22.645 (see also Clear and convincing evidence) inceptive fraud (constructive trust), 22.270 termination, 22.644 third parties, payments to, 22.644 types of awards, 22.250 verdict form, divorce, 22.700 verdict forms, 22.700 Alleys, vehicle right-of-way, 42.270 Alternate jurors, 02.560 Animals injuries by, 60.500 knowledge of viciousness, 60.510 Apportionment of damages, 66.810 Argument, closing, 00.080 Arrest, malicious, 62.200-62.210. See also Malicious prosecution exempt persons, arrest of, 62.240 malice, defined, 62.220 probable cause, want of, 62.230 Assent, contract, 16.030 additional terms, 16.050 conduct by both parties, 16.050 letters, replies, 16.040 sales of goods, 16.050 Assumption of risk, 60.130, 62.700 employee, 24.100 products liability, 62.710 Attestation of will, 76.200. See also Wills Attorney, skill required, 62.400 expert legal testimony, need for, 62.400 presumption, services performed in ordinarily skillful manner, 62.400
Attorney’s fees (expenses of litigation) contract damages, 18.020 exemplary damages, 18.022 provisions in notes, 18.021 Authority of agent, extent, 06.030
-B+ Bad character, evidence as to, impeachment of witnesses by, 02.150 Bad faith, in failure to pay insurance claim, 32.100 Bailees, 08.061 Bailments, 08.000 act of God, definition, 08.070 bailees, 08.061 bailor obligations, 08.040 burden of proof, 08.030 definition, 08.050 deposit, 08.051 depositary for hire, 08.052 diligence required, 08.060 liability of, 08.062 diligence, as affecting liability, 08.080 diligence required, 08.020 generally, 08.010 naked deposit, 08.053 Bailor obligations, 08.040 Bankruptcy cases, limitation of action new promise, 38.300 promise between adjudication, discharge, 38.300 Before introduction of evidence, preliminary instructions, 00.005 affirmative defenses, 00.040 burden of proof, 00.040 corporation as party, 00.030 evidence, 00.020 note taking by jurors, 00.090 parties, 00.030 preponderance of evidence, defined, 00.040 rules of evidence, 00.070 trial procedure, 00.080 closing argument, 00.080 opening statement, 00.080 presentation of evidence, 00.080 witnesses, credibility of, 00.050
Beneficiary of will, 76.010. See also Wills
Blank indorsement, negotiable instruments, 44.014
Boundaries, actual possession, prescription, 50.111
Breach of warranty land, contract damages, 18.050, 051 personalty, contract damages, 18.050, 18.052
Buildings, vehicle right-of-way, 42.270
2 Index—civil—updated August 2020
Burden of proof, 00.040 bailments, 08.030 claims to be levied upon property, 12.010 condemnation, 14.030 generally defined, 02.020 preponderance of evidence, 02.020 ratification of act of agent, 06.060 strict liability, 62.610 tort, counterclaims, 60.220 year’s support, 78.030 Business entity creation, 06.010
E ga Cancellation of contract, 16.500 Capacity, testamentary, 76.100 advanced age, 76.110 conviction of crime, 76.100 eccentricity, 76.110 incapacity to contract, 76.110 insanity, 76.110 test of, 40.060 Care for own safety, duty to exercise, 60.110 Carriers, 10.000 acts of God, 10.060 (see also Clear and convincing evidence) burden of proof, 10.060 common carriers, definition, 10.010 diligence required, 10.030, 10.090 distinction as question of fact, 10.020 duty to transport and deliver, 10.040 ending of duty of carrier, 10.100 limitations of liability by contract, 10.070 passenger, definition, 10.080 public enemies, act of, 10.060 (see also Clear and convincing evidence) burden of proof, 10.060 strike by carrier’s employees, 10.050 Cashed check, accord and satisfaction, 04.041 Certificate, false statements in, limited partnership, liability for, 48.240 Certificates of deposit, financial institution regarding, duties of, 62.750 Check cashed, accord and satisfaction, 04.041 reciting full payment, accord and satisfaction, 04.040 uncashed, accord and satisfaction, 04.042 Child support. See also Children alimony, 23.560 determined later, 22.300 deviation, 23.500 defined, 23.510 nonparent custodian’s income, 23.520 nonspecific, 23.585 special verdict form, 23.595
when authorized/prohibited, 23.515 DFCS Permanency Plan, 23.570 divorce
inceptive fraud (constructive trust), 22.270
issues incidental, 22.090
preliminary instructions, 22.001
resulting trust, 22.260 exclusions from income, 23.330 extended parenting time, 23.580 extraordinary expenses
special expenses, 23.578
education, 23.577
generally, 23.575
medical, 23.579 fringe benefits, 23.130 gross income, 23.100
defined, 23.110
special verdict form, 23.595
verdict, 23.450 health related insurance, 23.540
life insurance, 23.545 high income, 23.530
low income, 23.535 imputed income, 23.340 income from self-employment, 23.120 military compensation and allowances,
23.320 modification, 23.700 initial determination parties not married, before trial, 23.701 parties not married, final instruction, 23.705 mortgage, 23.565 number of children, 23.050 obligation, 23.001 preliminary instructions, 22.001 tax credit, 23.550 travel expense, 23.555 underemployment, 23.350
caretaker role explained, 23.355
factors, 23.352
imputed income, 23.357
not for armed services, 23.359 variable income, 23.300
irregular or one-time income, 23.310 verdict, 23.450
deviation, 23.590
form, 23.595
Children adoption of, will and, 76.420 birth of, will and, 76.420 by different spouses, year’s support, 78.040 due care by, 60.040
torts, 60.040 employees, diligence required of, 24.110 gifts from parent to, 28.040
Index—civil—updated August 2020
implied obligations to pay, 30.210 imputed negligence, 60.172 negligence, 60.310 provision in will for class of, 76.420 Circumstantial evidence, 02.110 Civil rights, insane persons, 40.020 Claims to be levied upon property, 12.000 Clear and convincing evidence, 02.040, 66.701 defined, 02.040 Closing argument, 00.080 Codicil to will, 76.010, 76.200. See also Wills Color of title, constructive possession, prescription, 50.125 Common carriers, definitions, 10.010 Comparative negligence (joint tortfeasors and non-parties), 60.220, 66.810 railroad employees, 24.230 Competency of witness, to will, 76.220 Concealment fraud and deceit, 26.040 insurance, 32.030 Condemnation, 02.540, 14.000 burden of proof, 14.030 consequential damages, 14.120 benefits, 14.142 business injury to, 14.146 removal of, 14.145 construction, prudent and proper, 14.144 inconvenience, 14.143 offset for consequential benefits, 14.141 for property not taken, 14.140 direct damages, 14.100 for property taken, used, 14.130 fair market value actual value, contrasted, 14.240 defined, 14.200 opinion evidence, 14.210 (see also Expert witness)
final instructions to jury, 14.510 (see also Jury) issue, 14.020 leased property, 14.400 business losses, 14.400 damages, 14.400 special damages, 14.400 unique property, 14.400 limited-access road definition, 14.300 deprivation of access rights, 14.310 peculiar value to owner, 14.250 preliminaries and pleadings, 14.010 property, defined, 14.110 uses to be considered, 14.230 value, change resulting from, 14.260
verdict, 14.520 quotient, 14.500 view of premises, 14.280 zoning, effect of, 14.270 Conditional admissibility, 02.118 Condonation, divorce, 22.060 Consent to injury, 62.500, 62.510 railroads, 62.520 Consequential damages buyer’s, fraud, deceit, 26.510, 26.512 condemnation, 14.120, 14.140 contract, 18.030 maintenance, 14.144 Consideration, 16.020 undue influence and, 74.200, 74.210 Consortium damages, 66.400 permanent loss, present cash value of, 66.401 Construction, negligent, 62.740 Constructive notice, in agency, 06.080 Constructive possession, prescription, 50.121 color of title, 50.125 definition, 50.122 duration, 50.124 recorded deeds, 50.123 Constructive trust, 72.340 inceptive fraud, 22.270 Contract damages, 18.000, 18.010 agreement, 18.011 attorney’s expenses (expenses of litigation), 18.020 exemplary damages, 18.022 provisions in notes, 18.021 consequential, 18.030 duty to lessen, 18.070 expenses, 18.060 interest, 18.040 liquidated demands, 18.040 nominal damages, 18.012 remote, 18.030 warranty, breach of land, 18.050, 18.051 personalty, 18.052 Contracts, 16.000 accident definition, 16.221 account, 16.600 defendant must authorize, 16.620 definition, 16.610 plaintiff must prove correctness, 16.630 account stated, 16.640 by implication, 16.650 assent, 16.030 additional terms, 16.050 conduct by both parties, 16.050 letters, replies, 16.040 sales of goods, 16.050
4 Index—civil—updated August 2020
cancellation, 16.500 consideration, 16.020 damages (see Contract damages) definition, 16.010 diligence, 16.400 duty to ascertain facts, 16.410 ignorance of one party, 16.410 ignorance of parties, 16.410 effect on, fraud, deceit, 26.020 essentials, 16.020 execution of contract, 16.510 fraud, 16.420 annotations under, 16.330 good faith performance, duty of, 16.200 (see also Negligent construction) limitations of liability of carrier, 10.070 mental capacity, test of, 40.070 misrepresentation, 16.420, 26.040 (see also Clear and convincing evidence) mistake, 16.220 definition, 16.300 degree of proof, 16.300 mistake of fact, 16.300, 16.320 mistake of law, 16.300, 16.310 mutual mistake, 16.330 negligence, 16.400 novation, 16.060 agreement of all parties to new contract, 16.060 cancellation of old contract, 16.060 elements, 16.060 previous valid obligation, 16.060 validity of new contract, 16.060 prima facie evidence of actual value, trover action, 70.170 quantum meruit, 16.700 amount of recovery, 16.730 definition, 16.720 essential requisites for recovery, 16.750 near relatives, circumstances between, for jury to determine, 16.760 not applicable where express contract exists, 16.740 statutory provision, 16.710 reformation, 16.330 rescission, 16.500, 16.800 by consent, 16.810 for nonperformance, 16.820 status quo ante required, 16.830 temporary departure, 16.100 reasonable notice, 16.100 sales of goods, 16.110 unilateral mistake, 16.500, 16.510 Contradictory statements, proof of, impeachment of witnesses by, 02.150 Contribution
demand for return of, limited partnership, 48.262 limited partnership, 48.230 Coordination of divorce with equitable division with nonmarital/separate property, 22.000, 22.190 Corporation as party, 00.030 Cotenants, prescription, 50.300 Counterclaims burden of proof, 02.030 comparative negligence, 60.220 damages as applied to verdict, 60.220 proximate cause, 60.220 tort, burden of proof, 60.220 Court, no interest in case, 02.530 Creation of business entity, 06.010 Credibility of witnesses, 00.050, 02.130 Creditor, 20.000 acts void as against creditors, examples, 20.010 credit on faith of title of spouse, 20.030 good faith, test of, 20.020 right of debtor to prefer creditors, 20.040 Crops, chemical damage to, damages, 66.900 Cruel treatment, 22.030 divorce, 22.030 mental cruelty, 22.050 single act, 22.040
_D- Damages for abusive litigation, 62.735 alcohol, acting under influence of, 66.720 apportionment of, tort, 66.810 attorney’s fees contract damages, 18.020 exemplary damages, 18.022 provisions in notes, 18.021 bias, 66.773 breach of warranty, 18.050 land, contract damages, 18.050, 18.051 personalty, contract damages, 18.050, 18.052 chemical damage to crops, 66.900 condemnation, 14.120, 14.140 benefits, 14.142 business injury to, 14.146 removal of, 14.145 consequential, 14.120, 14.142 construction, 14.144 direct, 14.100 for property taken, used, 14.130 inconvenience, 14.143 leased property, 14.400 damages, 14.400
Index—civil—updated August 2020
special damages, 14.400 offset for consequential benefits, 14.141 property not taken, 14.140 property taken, used, 14.130 consortium, 66.400 permanent loss, present cash value, 66.401 contract, 18.000 agreement, 18.011 attorney’s fees, 18.020 consequential, 18.030 duty to lessen, 18.070 expenses, 18.060 interest, 18.040 liquidated demands, 18.040 nominal damages, 18.012 remote, 18.030 warranty, breach of, land, 18.050, 18.051 warranty, breach of, personalty, 18.050, 18.052 counterclaims, damages as applied to verdict, 60.220 crops, chemical damages to, damages, 66.900 deceit, 26.500 consequential, 26.510, 26.512 incidental, 26.510, 26.511, 26.520 dissimilar conduct, tort, 66.772 drugs, acting under the influence of, 66.720 earning losses, 66.100, 66.200 annual, 66.203 future, 66.201 life expectancy, 66.202 past, 66.100 present cash value, 66.204 expenses, 66.040 contract damages, 18.060 tort damages, 66.040 extraterritoriality, 66.771 tort, 66.771 feelings of plaintiff, injury to, 66.600 fraud, 26.500 consequential, 26.510, 26.512 incidental, 26.510, 26.511, 26.520 happiness of plaintiff, injury to, 66.600 intent to harm acting with, 66.711 amplified, 66.712 interest contract damages, 18.040 liquidated damages, contract damages, 18.040 landlord and tenant, 36.500 life expectancy, 66.300, 66.301 annuity tables, 66.303 full value of life, 66.304 mortality tables, 66.302 limiting instructions, 66.770
litigation, abusive, 62.735 maintenance, consequential damages, 14.144 nominal damages, 66.010 nonproduct liability “cap,” 66.710 burden of proof, 66.730 preponderance of evidence, 66.730 pain and suffering, 66.500, 66.501 future, 66.503 preexisting injury, 66.504 peace of plaintiff, injury to, 66.600 personal property, 66.020, 66.030 prejudice, 66.773 preliminary instructions, 66.000 prescription drugs, exception, 66.721 punitive, 66.700, 66.702, 66.780 amount, 66.740, 66.750 bifurcation of trial, 66.740 guidelines, 66.750 measure, 66.741 tort liability, 66.780 repairs, setoff against rent, 36.500 reprehensibility, 66.760 sympathy, 66.773 tenant, duty of, damages, 36.500 tort, 66.000 apportionment of damages, 66.810 duty to lessen, 66.015 nominal damages, 66.010 preliminary instructions, 66.001 reprehensibility, 66.760 trover, 70.100 highest proved value, 70.110, 70.120 70.130 measure of, 70.100 property, hire interest, 70.150 valuation date, 70.140 secured property, amount of verdict for, 70.160 Dangerous instrumentalities, 60.400 entrusting to others, 60.410 use of, 60.420 Death, effect, limited partnership, 48.290 Debt, acceptance of less than amount, accord and satisfaction, 04.030 Debtor, 20.000 acts void as against creditors, examples, 20.010 credit on faith of title of spouse, 20.030 good faith, test of, 20.020 right of debtor to prefer creditors, 20.040 Deceit, 26.000 buyer’s consequential damages, 26.510, 26.512 buyer’s incidental damages, 26.510, 26.511 concealment, 26.040
Index—civil—updated August 2020
contracts, effect on, 26.020 damages, generally, 26.500 definitions, 26.010 diligence required of plaintiff, 26.030 fraud and deceit, 26.040 goods, sale of, 26.100 generally, 26.400 trover, 26.110 lands, sale of, 26.300 misrepresentation, 26.040 presumption, and proof, 26.010 proof, 26.010 releases, 26.200 rescission, 26.050 restitution, 26.050 seller’s incidental damages, 26.520 Deeds, recorded, constructive possession, prescription, 50.123 Defense, affirmative, 00.040 Delay, claims to be levied upon property, damages for, 12.050 Delivery of negotiable instruments, 44.010 Delivery of personal property, gifts, 28.020 recovery, 28.030 to third person, 28.030 Deposit, 08.051 naked, 08.053 liability for, 08.061 Depositaries. See also Depositary for hire involuntary, liability for naked deposit, 08.061 naked, diligence required, 08.060 voluntary, liability for naked deposit, 08.061 Depositary for hire, 08.052 diligence required, 08.060 liability of, 08.062 Desertion, 22.230 Design defect, strict liability, 62.640 alternative design evidence, 62.660 product design, 62.660 industry standards, government regulation compliance, 62.670 risk-utility test, factors, 62.650 Destruction of will, material portion thereof, 76.340 DFCS Permanency Plan, 23.570 Diligence as affecting liability, 08.080 bailments, 08.020 carriers, 10.030, 10.090 contractual, 16.400 Direct evidence, 02.110 Dispossessory warrants, 36.600 recoupment, 36.600 setoff, 36.600 Disproving facts about which witness testifying,
Index—civil—updated August 2020
impeaching of witnesses by, 02.150 Disputed amount, accord and satisfaction, 04.020 Dissimilar conduct, tort damages, 66.772 Dissolution of limited partnership, 48.264 Divorce, 22.000
adultery, 22.025, 22.220
alimony, 22.200, 22.210
adultery, 22.220 amount, 22.240 coordination with nonmarital/separate property, 22.290 desertion, 22.230 form of verdict, 22.644 inceptive fraud (constructive trust), 22.270 method of payment, 22.250 partitioning, 22.280 resulting trust, 22.260 types of, 22.250 child support (see also Child support) alimony, 23.560 determined later, 22.300 deviation, 23.500 defined, 23.510 nonparent custodian’s income, 23.520 nonspecific, 23.585 when authorized/prohibited, 23.515 DFCS Permanency Plan, 23.570 exclusions from income, 23.330 extraordinary expenses, 23.575 et seq. extended parenting time, 23.580 fringe benefits (amplified), 23.130 gross income, 23.100 defined, 23.110 special verdict form, 23.595 verdict, 23.450 health related insurance, 23.540 life insurance, 23.545 high income, 23.530 low income, 23.535 imputed income, 23.340 income from self-employment, 23.120 issues incidental, 22.090 military compensation, 23.320 modification, 23.700 initial determination, parties not married, before trial, 23.701 initial determination, parties not married, final instruction, 23.705 mortgage, 23.565 number of children, 23.050 obligation, 23.001 parties, 00.030 preliminary instructions, 22.001 tax credit, 23.550 travel expense, 23.555 underemployment, 23.350
caretaker role, 23.355 factors, 23.352 imputed income, 23.357 not for armed services, 23.359 variable income, 23.300 irregular or one-time income, 23.310 verdict, 23.450 deviation, 23.590 form, 23.595 classification of property, 22.120 marital property, 22.123 nonmarital property, 22.121 condonation, 22.060 constructive trust, see inceptive fraud coordination with equitable division, 22.000, 22.190 cruel treatment, 22.030 mental cruelty, 22.050 single act, 22.040 desertion, 22.230 equitable division of property, 22.100 appreciation in value of nonmarital property, 22.124 classification of property, 22.120 factors in, 22.150 form of verdict, 22.643 general, 22.110 inceptive fraud (constructive trust), 22.182 marital property, 22.123 methods of, 22.170 nonmarital property, 22.121 partitioning, 22.184 property title, 22.130 resulting trust, 22.180 source of funds, 22.122 form of verdict, 22.640, 22.641 alimony, 22.644 equitable division of marital property, 22.643 inceptive fraud, 22.646 nonmarital property, 22.642 resulting trust, 22.645 general charge (grounds), 22.020 how granted, 22.010 inceptive fraud (constructive trust) alimony, 22.270 equitable division, 22.182 form of verdict, 22.646 incurable mental illness, 40.050 introduction, 22.005 irretrievably broken marriage, 22.070 issues incidental, 22.090 marital property, 22.123 equitable division, form of verdict, 22.643 nonmarital property, 22.121 appreciation in value of, 22.124
coordination with alimony, 22.290 coordination of equitable division, 22.190 form of verdict, 22.642 funds obtained from sale, exchange, use of, 22.122 partitioning, alimony 22.280 equitable division, 22.184 property title, 22.130 resulting trust, 22.260 (see also Clear and convincing evidence) alimony, 22.260 equitable division, 22.180 form of verdict, 22.645 inceptive fraud (constructive trust), 22.270 source of funds, 22.122 testator’s, effect on will, 76.430 verdict form, 22.700 Driveways, right-of-way, 42.270 Drugs, acting under influence of, damages, 66.720 Duress economic, 74.120 harm, threats of, 74.110 statutory definition, 74.100 Duty to ascertain facts, contract, 16.410 ignorance of parties, 16.410 Duty to warn continuing duty, 62.683 foreseeable, unforeseeable uses, 62.681 open, obvious danger, 62.682
= Earnings, loss of, tort damages, 66.100, 66.200, 66.201 earnings, annual, 66.203 life expectancy, 66.202 present cash value, 66.204 Electronics, juror use of technology, 00.110 Employee, 24.000 assumption of risk, 24.100 children, diligence required, 24.110 duty of, fellow employees, 24.070 employer duty to warn, 24.060 machinery, 24.080 negligence, 60.130 partner, distinguished, 48.300 place to work, 24.090 of railroad, 24.200 care for own safety, 24.240 comparative negligence rule applies, 24.230 Federal Employer’s Liability Act, 24.210 statutory violations by railroad, 24.220 retention, selection, 24.020 workplace, 24.090 Employer, 24.000
Index—civil—updated August 2020
duties of, 24.010 duty to warn employee, 24.060 negligent employment, degree of care required, 24.020 negligent retention, degree of care required, 24.020 presumption of ordinary care, 24.050 selection, retention of employees, 24.020 workplace, 24.030 changing conditions, 24.040 Enemies, public, act of, 10.060. See also Clear and convincing evidence burden of proof, 10.060 Entitlement, year’s support, 78.010 Equal negligence, no recovery, 66.810 Equitable division of property, 22.110—22.190 in alimony, 22.170, 22.210 award of percentages, 22.170 appreciation in value of nonmarital property, 22.124 by awarding specific items, cash, 22.170 classification (marital or nonmarital), 22.120 in divorce, 22.100, 22.150, 22.643 factors in, 22.150 general, 22.110 inceptive fraud (constructive trust), 22.182 issues incidental, 22.090 marital property, 22.123, 22.643 methods, 22.170 nonmarital property, 22.121, 22.124, 22.642 partitioning, 22.184 property in cash, 22.170 property title, 22.130 source of funds, 22.122 by specific personal property, 22.170 verdict forms, 22.700 Equity of spouse, secret, claims to be levied upon property, 12.040 Evidence, 00.020, 02.100 circumstantial, general, 22.110, 02.110 clear and convincing, 02.040 direct, 02.110 divorce (testimony and exhibits), 22.001 failure to produce, 02.160 note regarding changes based upon new evidence code, 00.000 preliminary general instructions before introduction of, 00.005 presentation of, 00.080 rules of, 00.070 Execution of contract, 16.510 Execution of will, 76.200. See also Wills Executor of will, 76.010. See also Wills Expenses. See also Attorney’s fees contract damages, 18.060 tort damages, 66.040
Expert witness, 02.120, 02.121 Express trust capacity to create, 72.210 definition, 72.100 duration of trust, 72.230 parol evidence, 72.240 purpose, 72.220 requirements, 72.200 Extraterritoriality, tort damages, 66.771
-F- Failure to pay insurance claim, 32.100 Failure to produce evidence, 02.160 Failure to produce witnesses, 02.161 control by party, 02.163 mutual accessibility, 02.162 Fair market value in condemnation actual value, contrasted, 14.240 defined, 14.200 opinion evidence, 14.210 (see also Expert witness) False imprisonment, 62.100, 62.110 warrant, authority of, 62.120 Family purpose doctrine, 60.340 Family transactions, implied obligations to pay, 30.200 Federal Employer’s Liability Act, 24.210 Feelings of plaintiff, injury to, damages, 66.600 Fiduciary relationship as creating trust, 72.400 Final instructions, jury, 02.570 Foreseeability, 60.202 Form of verdict, 02.500 Fraud, 26.000 as affecting limitations of action, 38.100 diligence of plaintiff, 38.110 buyer’s consequential damages, 26.510, 26.512 buyer’s incidental damages, 26.510, 26.511 claims to be levied upon property, 12.020 husband and wife, 12.030 concealment, 26.040 contractual annotations under, 16.330 effects on, 26.020 damages, generally, 26.500 definitions, 26.010 diligence required of plaintiff, 26.030 goods, sale of, 26.100 generally, 26.400 trover, 26.110 as indicated by undue influence, 74.220 lands, sale of, 26.300 misrepresentation, 26.040 negotiable instruments, 44.100 presumption, and proof, 26.010 to prevent prescription, 50.220
Index—civil—updated August 2020
proof, 26.010
releases, 26.200
rescission, 26.050
restitution, 26.050
seller’s incidental damages, 26.520 Full payment, check reciting, accord and
satisfaction, 04.040
—-G-— General instructions, 02.000 General partner limited partnership, rights, powers, liabilities, 48.140 rights, powers, liabilities, 48.140, 48.295 Gifts, 28.000 acceptance of, 28.010 delivery of personal property, 28.020 recovery, 28.030 to third person, 28.030 essentials, 28.010 from parent to child, 28.040 realty, 28.040 valuable improvements, realty plus, 28.050 Good faith, test of, 20.020 Good faith performance, duty of contracts, 16.200. See also Negligent construction Gross negligence, 60.030 Guardianship, insane persons, 40.020 Guests, imputed negligence of, 60.173
-H-
Happiness of plaintiff, injury to, damages, 66.600
Highways, vehicles on, 42.130 right-of-way, 42.210
Holder in due course, negotiable instruments, defined, 44.100
Hospital, degree of care, 62.320
Hung jury, 02.700
aj- Impeachment of witnesses, 02.156 credibility attacked, 02.156 Implied invitation, 60.630 Implied obligations to pay, 30.000, 30.010 family transactions, 30.200 money, 30.400 parent and child, 30.210 transfer of property, 30.300 usual practice, 30.100 Implied revocation, will, effect of, 76.410 Implied trust, 72.310 constructive trust, 72.340 definition, 72.100 parol evidence, 72.350 purchase money resulting trust, 72.330
requirements, 72.300
resulting trust, 72.320 Imputed negligence, 60.170, 60.171
children, 60.172
guests, 60.173 Inadequate warning, defect due to, 62.680 Incapacity, negotiable instruments, 44.100 Inceptive fraud, 22.646
alimony, 22.270
form of verdict, 22.646 Incidental damages
buyer’s, fraud and deceit, 26.510, 26.511
seller’s, fraud and deceit, 26.520 Income
assets and alimony in determining, 22.000 Incurable mental illness, divorce, 40.050 Independent contractor, negligence, 60.350 Indorsement, negotiable instruments, 44.010
effect of delivery, 44.020
Innocent misrepresentation, insurance, 32.020
Insane persons civil rights, 40.020 contractual power, 40.030 definition, 40.010 guardianship, 40.020, 40.030 tort liability of, 40.040 Insurance, 32.000 bad faith, 32.100 concealment, 32.030 failure to pay claim, 32.100 insurable interest, life, 32.300 corporation, 32.300 individuals, 32.300 property, 32.400 time of existence, 32.300 trustee, 32.300 misrepresentation, 32.010 innocent, 32.020 suicide, presumption against, 32.200 Interest contract damages, 18.040 liquidated demands, 18.040 Intersection, vehicles at, 42.110 Intervening cause rules, 60.202 Invitation, implied, 60.630 Invitees, 60.600 Actual or constructive knowledge, 60.625 definition, 60.610 duty to, 60.620 implied invitation, 60.630 Involuntary depositaries, liability for naked deposit, 08.061 Irretrievably broken marriage, 22.070
ea
10 Index—civil—updated August 2020
Judicial Notice, 02.112 Jurors. See also Jury alternate, 02.560 note taking by, 00.090 Jury condemnation, final instructions, 14.510 final instructions, 02.570 hung, 02.700 product defect deliberation, 62.720 unanimous, 02.700
-K-
Knowledge of principal, ratification of act of agent, 06.070
Knowledge of viciousness, of animal, 60.510
-L- Laches, as limitation of action, 38.400 Landlord and tenant, 36.000 damages, 36.500 dispossessory warrants, 36.600 recoupment, 36.600 setoff, 36.600 duty of landlord, 36.010 during rental, 36.030 at time of rental, 36.020 duty of tenant, 36.500 avoidance of danger, 36.310 notice to landlord, 36.300 repair, 36.500 setoff against rent, 36.500 liability of landlord, 36.200 latent defects, 36.230 patent defects, liability to tenant, 36.210 during rental, possession by landlord, 36.220 repairs during tenancy, 36.240 recoupment, 36.600 setoff, 36.600 against rent, 36.500 tenants, privies, 36.400 Landmarks processioning, 54.050 traditional, 54.050 Last clear chance, 60.210 Latent defects, landlord liability, 36.230 Leased property, condemnation, 14.400 business losses, 14.400 damages measure of, 14.400 special, 14.400 unique, 14.400 Left turns, vehicle right-of-way, 42.250 Less than amount of debt, acceptance of, accord and satisfaction, 04.030 Licensees, 60.700
definition, 60.710 general test, 60.720 duty to, 60.730 Life expectancy, damages, 66.300 annuity tables, 66.303 full value of life, 66.304 mortality tables, 66.302 Life insurance corporation, 32.300 individuals, 32.300 insurable interest, 32.300 property, 32.400 time of existence, 32.300 trustee, 32.300 Limitation of actions, 38.000 bankruptcy cases new promise, 38.300 promise between adjudication, discharge, 38.310 explanation, 38.010 fraud as affecting limitations, 38.100 diligence of plaintiff, 38.110 laches, 38.400 new promise, 38.200 correspondence, 38.210 statute of limitations explanation, 38.010 fraud as affecting, 38.100, 38.110 new promise, 38.200, 38.210 Limitation of liability of carrier, by contract, 10.070 Limited-access road definition, 14.300 deprivation of access rights, 14.310 Limited partnership contribution, 48.230 forms of, 48.150 death, effect of, 48.290 definition, 48.110, 48.210 demand for return of contribution, 48.262 dissolution of, 48.264 false statements in certificate, liability for, 48.240 general partner, rights liabilities, 48.295 powers, 48.295 liabilities, 48.140 inspection right, partner, 48.130 liability, 48.120, 48.270 nature of interest in partnership, 48.280 obligations, 48.220 partner distribution upon withdrawal, 48.160 right to bring action, 48.180 partnership interest, nature of, 48.170 receipt of contribution, conditions for, 48.261
Index—civil—updated August 2020 11
under Revised Uniform Limited Partnership Act, 48.100 right to receive cash, 48.263 rights, 48.250 under Uniform Limited Partnership Act, 48.200 withdrawal, reduction of contributions, 48.260 Limiting instructions, 02.116 conditional admissibility, 02.118 Litigation, abusive, 62.730 damages, 62.735 good faith, 62.732 successful claim, 62.733 verdict for plaintiff/defendant, 62.734 voluntary termination, 62.731 without substantial justification, defined, 62.730
Lump sum award, alimony, 22.250, 22.644
-M- Machinery, duty of employee, 24.080 Malicious arrest, 62.200, 62.210. See also Malicious prosecution exempt persons, arrest of, 62.240 malice, defined, 62.220 probable cause, want of, 62.230 Malicious prosecution, 62.001, 62.010 advice of counsel, 62.020 Manufacturing defects, 62.620. See also Products liability deviation from design, 62.630 Marital property, in divorce, 21.122. See also Divorce Marriage, mental incapacity at time of, 40.050 Medical expenses, tort damages, 66.040 Medical malpractice, 62.311 Mental ability, great disparity of, as undue influence, 74.230 Mental capacity, 40.000 contractual capacity, test of, 40.070 incurable mental illness, divorce, 40.050 insane persons civil rights, 40.020 contractual power, 40.030 definition, 40.010 guardianship, 40.020 necessaries, liability for, 40.030 tort liability of, 40.040 marriage, mental incapacity at time of, 40.050 testamentary capacity, test of, 40.060 Mental pain and suffering, tort damages, 66.501 Method of payment alimony, 22.250
Misrepresentation contract, 16.240 (see also Clear and convincing evidence) fraud and deceit, 26.040 insurance, 32.010, 32.020 Mistake in contract, 16.220 definition, 16.300 degree of proof, 16.300 of fact, 16.300, 16.320 of law, 16.300, 16.310 (see also Contracts) Money, implied obligations to pay, 30.400 Moral turpitude, conviction of offense involving, impeachment of witnesses by, 02.150 Mortgage, 23.565 Motor vehicles, 42.000 alleys, right-of-way, 42.270 definitions, 42.100 highways, 42.130 crossing, 42.120 intersection, 42.110 left turns, right-of-way, 42.250 pedestrians, 42.310 right-of-way, 42.300 private roads, right-of-way, 42.260 right-of-way defined, 42.150 miscellaneous regulations, 42.200 roadway, 42.120 rule of the road, 42.400 speed, 42.010 stop signs, right-of-way, 42.240 through highway, 42.140 T-shaped intersection, right-of-way, 42.220 yield signs, right-of-way, 42.230 Muniments of title, processioning, 54.030 Mutual mistake, contract, 16.330
-N- Naked depositaries, 08.053 diligence required, 08.060 liability for, 08.061 Nature of interest in partnership, 48.280 Negligence, 60.060 agency and, 60.300 contract, 60.400 duty to lessen damages, 66.015 employees, when employer not liable for, 60.330 family purpose doctrine, 60.340 independent contractor, 60.350 medical malpractice, 62.311 per se, 60.050 spouse, child, employee, 60.310 willful torts, 60.320 Negligent construction, 62.740 Negligent employment, degree of care required,
12 Index—civil—updated August 2020
24.020 Negligent retention, degree of care required, 24.020 Negotiability of negotiable instruments, 44.100 Negotiable instruments, 44.000 blank indorsement, 44.014 delivery, 44.010 fraud, 44.100 holder in due course, defined, 44.100 incapacity, 44.100 indorsement, 44.010 necessity of indorsement, effect of delivery without, 44.020 negotiability, 44.100 payable to bearer, 44.012 payable to order, 44.011 rescission, defects affecting, void transactions, 44.100 special indorsement, 44.013 void transactions, 44.100 Negotiation of instruments, 44.010, 44.011 transfer of possession, 44.011 New promise bankruptcy cases, limitation of actions, 38.300 correspondence, statute of limitations, 38.210 statute of limitations, 38.210 correspondence, 38.210 Nominal damages contract damages, 18.012 tort, 66.010 Nonmarital property, 22.121 appreciation in value of, 22.124 funds obtained from sale, exchange, or use of, 22.122 Nonproduct liability damages “cap,” 66.710 burden of proof, 66.730 preponderance of evidence, 66.730 Note taking by jurors, 00.090 Notice constructive, in agency, 06.080 to landlord, by tenant, 36.300 Novation, contract agreement of all parties to new contract, 16.060 cancellation of old contract, 16.060 elements, 16.060 previous valid obligation, 16.060 validity of new contract, 16.060 Nuisances, 46.000 air, right to, 46.020 definition, 46.010 private right to abate nuisance, 46.040 property, reasonable use of, duty to, 46.030 public nuisances, 46.040
-0- Obligations to pay, implied, 30.000, 30.010 family transactions, 30.200 money, 30.400 parent and child, 30.210 transfer of property, 30.300 usual practice, 30.100 Obliteration of will, material portion thereof, 76.340 Offense involving moral turpitude, by conviction of, impeachment of witnesses by, 02.150 Opening statement, 00.080 Ordinary negligence, 60.010
-P-
Pain and suffering, 66.500, 66.501 aggravation of injury, 66.504 future, 66.503 preexisting injury, 66.504
Parent gifts to child, 28.040 implied obligations to pay, 30.210 Parol evidence express trust, 72.240 implied trust, 72.350 Partial possession of premises, by landlord, 36.220 Parties, 00.030 Partitioning, divorce, 22.280 Partnership, 48.000 creation of generally, 48.020 oral, 48.020 third persons, 48.020 written, 48.020 death, effect, estate, liability of, 48.290 defined, 48.010 employee distinguished from partner, 48.300 limited contribution, 48.150, 48.230 death, effect of, 48.290 definition, 48.110, 48.210 demand for return of contribution, 48.262 dissolution of, 48.264 false statements in certificate, liability for, 48.240 general partner, 48.140, 48.295 liability, 48.270 nature of interest in partnership, 48.280 obligations, 48.220 partnership interest, nature of, 48.170 receipt of contribution, conditions for, 48.261 under Revised Uniform Limited Partnership Act, 48.100
Index—civil—updated August 2020 13
right to receive cash, 48.263 rights, 48.250 under Uniform Limited Partnership Act, 48.200 withdrawal, reduction of contributions, 48.260 rights, 48.250 under Uniform Limited Partnership Act, 48.200 withdrawal, reduction of contributions, 48.260 limited partner distribution upon withdrawal, 48.160 information, right of, 48.130 inspection, right of, 48.130 liability of, 48.120 right to bring action, 48.180 other transactions, 48.400 Passenger, definition, 10.080 Patent defects, liability to tenant, 36.210 Payable to bearer, negotiable instruments, 44.012 Payable to order, negotiable instruments, 44.011 Peace of plaintiff, injury to, 66.600 Peculiar value to owner, condemnation, 14.250 Pedestrians on highway, 42.310 right-of-way, 42.300 Periodic payments, alimony, 22.250, 22.644 Permissive use, private ways, 52.200 Per se negligence, 60.050 Personal property items to be considered, 66.030 tort damages, 66.020 not to exceed value, 66.030 Physician, skill required, 62.300 after-acquired information, 62.311 common knowledge, 62.310 expert testimony, need for, 62.300 presumption, services performed in ordinarily skillful manner, 62.300 Pleadings, 02.010 not evidence, 02.010 “Positive and continuous torts” (three types), 66.015 Possession actual, prescription, 50.100 boundaries, 50.111 definition, 50.110 duration, 50.112 constructive, prescription, 50.121 color of title, 50.125 definition, 50.122 duration, 50.124 recorded deeds, 50.123 Prejudice, damages and, 66.773 Preliminary general instructions, before
introduction of evidence, 00.000, et seq. affirmative defenses, 00.040 burden of proof, 00.040 corporation as party, 00.030 credibility of witnesses, 00.050 evidence, 00.020 note-taking by jurors, 00.090 parties, 00.030 preponderance of evidence, defined, 00.040 rules of evidence, 00.070 trial procedure, 00.080 closing argument, 00.080 opening statement, 00.080 presentation of evidence, 00.080 Preponderance of evidence, defined, 00.040 Prescription, 50.000 acquiescence in line, 50.200 actual possession, 50.100 boundaries, 50.111 definition, 50.110 duration, 50.112 nature, 50.111 agreed line, 50.210 constructive possession, 50.121 boundaries, 50.123 color of title, 50.125 conflicting claims, 50.122 definition, 50.122 duration, 50.124 forgery, 50.124 fraud, 50.124 recorded deeds, 50.123 cotenants, 50.300 definition, 50.010 fraud to prevent, 50.220 Prescription drugs, acting under the influence of, 66.721 Presentation of evidence, 00.080 Principal knowledge of, ratification of act of agent, 06.070 responsibility of, extent, 06.020 Prior statements, of witnesses, 02.158 Private right to abate nuisance, 46.040 Private roads. See also Private ways vehicle right-of-way, 42.260 Private ways, 52.000, 52.010 indispensability, 52.020 permissive use, 52.200 prescription, establishment by, 52.100 statute, establishment by (ways of necessity), 52.001 Privies, duties of landlord/tenant, 36.400 Processioning, 54.000. See also Prescription, actual possession adverse possession, 54.040
14 Index—civil—updated August 2020
general rules, 54.010 issue, 54.020 landmarks, 54.050 traditional, 54.050 muniments of title, 54.030 reputation, 54.050 Products liability, 62.600 Promise between adjudication, discharge, bankruptcy cases, limitation of action, 38.310 Proof of agency, 06.040 Property. See also Condemnation claims to be levied upon, 12.000 burden of proof, 12.010 delay, 12.050 fraud, 12.020, 12.030 secret equity of spouse, 12.040 classification of, divorce, 22.120 defined, 14.110 implied obligations to pay, 30.300 reasonable use of, nuisance and, 46.030 Property set apart, vesting of title to, year’s support, 78.040 Prosecution, malicious, 62.001, 62.010 advice of counsel, 62.020 Proximate cause, 60.220 definition, 60.200 foreseeability, 60.202 intervening cause rules, 60.202 last clear chance, 60.210 natural and probable consequence, 60.202 Public enemies, end of, 10.060. See also Clear and convincing evidence burden of proof, 10.600 Public nuisances, 46.040 Punitive damages, 66.700, 66.702 amount, 66.740 guidelines, 66.750 bifurcation of trial, 66.740 measure, 66.741 tort liability, 66.780 Purchase money resulting trust, 72.330
-Q- Quantum meruit contracts, 16.700 amount of recovery, 16.730 definition, 16.720 essential requisites for recovery, 16.750 relatives, circumstances between, for jury to determine, 16.760 statutory provision, 16.710 where express contract exists, 16.740 Quotient, verdict, 02.510
-R- Railroad crossings, 56.000 approach of train, obedience to signal
indicating, 56.121 bells, 56.010 grade crossings, maintenance of, 56.110 moving heavy equipment, 56.124 signals outside municipalities (Blowpost Law), 56.001 signals within municipalities, 56.010 stop at, 56.120 vehicle stops, 56.122, 56.123, 56.124 Railroad employees, 24.200 care for own safety, 24.240 comparative negligence rule applies, 24.230 Federal Employer’s Liability Act, 24.210 statutory violations by railroad, 24.220 Railroads, consent to injury, 62.520 Ratification, agency, 06.050 Realty as gift, 28.040 plus valuable improvements, as gift, 28.050
Reconciliation, prospect in divorce cases, 22.070 Recorded deeds, constructive possession, prescription, 50.123 Reformation, contract, 16.330 Releases, fraud and deceit, 26.200 Remote contract damages, 18.030 Repairs setoff against rent, damages, duty of tenant, 36.500 during tenancy, 36.240 Reprehensibility, tort damages, 66.760 Republication of will, 76.300. See also Wills Rescission, 16.500, 16.800 by consent, 16.810 fraud and deceit, 26.050 negotiable instruments, defects affecting, 44.100 for nonperformance, 16.820 Status quo ante required, 16.830 Res ipsa loquitar, 60.800 Responsibility of principal, extent, 06.020 Restitution, fraud and deceit, 26.050 Resulting trust, 72.320 alimony, 22.260 divorce, 22.260 (see also Clear and convincing evidence) inceptive fraud, 22.270 form of verdict, 22.645 Revised Uniform Limited Partnership Act, 48.100 Revocation of will, 76.300. See also Wills express, 76.320 implied, 76.320 (see also Wills) effect of, 76.410 Right-of-way for vehicles defined, 42.150
Index—civil—updated August 2020 15
miscellaneous regulations, 42.200 Roadway, vehicles on, 42.120 Rule of the road, for vehicles, 42.400 Rules of evidence, 00.070
—-S— Sale of goods. See also Contracts fraud and deceit in, 26.100 generally, 26.400 trover, 26.110 Sale of lands. See also Contracts fraud and deceit in, 26.300 Sales, comparable, 02.121 Satisfaction, accord and, 04.000 acceptance of less than amount of debt, 04.030 cashed check, 04.041 check reciting full payment, 04.040 definitions, 04.010 disputed amount, 04.020 uncashed check, 04.042 Secret equity of spouse, claims to be levied upon property, 12.040 Sentimental, speculative value, 14.250 Silence, instructions regarding, 02.171 Skill required of attorney, 62.400 expert legal testimony, need for, 62.400 presumption, services performed in an ordinarily skillful manner, 62.400 required of physician, 62.300 after-acquired information, 62.311 common knowledge, 62.310 expert testimony, need for, 62.300 presumption, services performed in ordinarily skillful manner, 62.300 Slight negligence, 60.020 Special indorsement, negotiable instruments, 44.013 Speed, vehicles, 42.010 Spouse credit on faith of title of, 20.030 equity of, secret, claims to be levied upon property, 12.040 former, remarriage to, wills, 76.430 minor children by different, support, 78.040 negligence, 60.310 secret equity, claims to be levied upon property, 12.040 testamentary gift to, 76.230 Statement, opening, 00.080 Statute of limitations explanation, 38.010 fraud as affecting limitations, 38.100 diligence of plaintiff, 38.110 new promise, 38.200
correspondence, 38.210 Stipulations, 02.110 Stop signs, right-of-way, 42.240 Strict liability burden of proof, 62.610 design defect, 62.640 alternative design evidence, 62.660 industry standards, government regulation compliance, 62.670 general explanation, 62.610 manufacturing defect, 62.620 deviation from design, 62.630 products liability, 62.600 Strike by carrier’s employees, 10.050 Subrogation, 58.000 circumstances creating right, 58.010 Suicide, insurance presumption against, 32.200
Support. See also Child support year’s, 78.000 amount of award, 78.020 burden of proof, 78.030 entitlement, 78.010 minor children by different spouses, 78.040 property set apart, vesting of title to, 78.040 Sympathy, 02.550 damages and, 66.773
Ta Technology, juror use of, 00.110 Temporary departure, contract, 16.100 reasonable notice, 16.100 sales of goods, 16.110 no consideration necessary, 16.110 Tenant and landlord, 36.000 dispossessory warrants, 36.600 recoupment, 36.600 setoff, 36.600 duty of landlord, 36.010 during rental, 36.030 at time of rental, 36.020 duty of tenant avoidance of danger, 36.310 damages, 36.500 notice to landlord, 36.300 repairs, 36.500 setoff against rent, 36.500 liability of landlord, 36.200 latent defects, 36.230 patent defects, liability to tenant, 36.210 during rental, possession by landlord, 36.220 repairs during tenancy, 36.240 privies, 36.400 recoupment, 36.600 setoff, 36.600
16 Index—civil—updated August 2020
Termination of alimony, 22.644 Testamentary capacity insane persons, 40.060 test of, 40.060 Testator, 76.010. See also Wills annulment of marriage, 76.430 divorce, 76.430 effect on will, 76.430 knowledge of contents of will, 76.210 marriage of, 76.420 power of, 76.012, 76.300 Third parties alimony payments to, 22.644 payments to, 22.644 Threats of harm, duress, 74.110 Torts, 60.000 abusive litigation, 62.730 damages, 62.735 good faith, 62.732 successful claim, 62.733 verdict for plaintiff/defendant, 62.734 voluntary termination, 62.731 without substantial justification, defined, 62.730 accident, 60.160 animals injuries by, 60.500 knowledge of viciousness, 60.510 assumption of risk, 60.130 defense, 62.700 products liability, 62.710 attorney, skill required, 62.400 expert legal testimony, need for, 62.400 presumption, services performed in ordinarily skillful manner, 62.400 avoidance of consequences, 60.120 care for own safety, 60.110 certificates of deposit, financial institution regarding, duties of, 62.750 children, due care by, 60.040 consent to injury, 62.500, 62.510 railroads, 62.520 continuing duty to warn, 62.683 counterclaims burden of proof, 60.220 comparative negligence, 60.220 damages as applied to verdict, 60.220 proximate cause, 60.220 damages, 66.000 alcohol, acting under the influence of, 66.720 apportionment of damages, 66.810 bias, 66.773 clear and convincing evidence, 66.701 consortium, 66.400 permanent loss, present cash value of,
66.401 crops, chemical damage to, 66.900 dissimilar conduct, 66.772 drugs, acting under influence of, 66.720 duty to lessen, 66.015 earnings, 66.200 annual, 66.203 future, loss of, 66.201 life expectancy, 66.202 past, loss of, 66.100 present cash value, 66.204 expenses, 66.040 extraterritoriality, 66.771 feelings of plaintiff, injury to, 66.600 happiness of plaintiff, injury to, 66.600 intent to harm acting with, 66.711 amplified, 66.712 life expectancy, 66.300, 66.301 annuity tables, 66.303 full value of life, 66.304 mortality tables, 66.302 limiting instructions, 66.770 nominal damages, 66.010 nonproduct liability “cap,” 66.710 burden of proof, 66.730 preponderance of the evidence, 66.730 pain and suffering, 66.500, 66.501 future, 66.503 mental, 66.501 preexisting injury, 66.504 peace of plaintiff, injury to, 66.600 personal property, 66.020 not to exceed value, 66.030 “positive and continuous” (three types), 66.015 prejudice, 66.773 preliminary instructions, 66.001 prescription drugs, exception, 66.721 punitive damages, 66.780 amount, 66.740 bifurcation of trial, 66.740 guidelines, 66.750 measure, 66.741 punitive liability, 66.700, 66.702 reprehensibility, 66.760 sympathy, 66.773 dangerous instrumentalities, 60.400 entrusting to others, 60.410 use, 60.420 duty to warn foreseeable, unforeseeable uses, 62.681 open, obvious danger, 62.682 emergency, 60.150 equal negligence, no recovery, 66.810 false imprisonment, 62.100, 62.110
Index—civil—updated August 2020 17
warrant, authority of, 62.120 gross negligence, 60.030 hospital, degree of care, 62.320 imputed negligence, 60.170, 60.171 children, 60.172 guests, 60.173 inadequate warning, defect due to, 62.680 insane persons, 40.040 invitees, 60.600 definition, 60.610 duty to, 60.620 implied invitation, 60.630 jury deliberation, product defect, 62.720 licensees definition, 60.710 duty to, 60.730 general test, 60.720 malicious arrest, 62.200, 62.210 (see also Malicious arrest) exempt persons, arrest of, 62.240 malice, defined, 62.220 probable cause, want of, 62.230 malicious prosecution, 62.001, 62.010 advice of counsel, 62.020 negligence, 60.060 agency, 60.300 employees, when employer not liable for, 60.330 family purpose doctrine, 60.340 independent contractor, 60.350 per se, 60.050 spouse, child, employee, 60.310 willful torts, 60.320 negligent construction, 62.740 one act sufficient, 60.060 ordinary negligence, 60.010 physician required, skill required, 62.300 after-acquired information, 62.311 common knowledge, 62.310 expert testimony, need for, 62.300 presumption, services performed in ordinarily skillful manner, 62.300 proximate cause definition, 60.200 foreseeability, 60.202 intervening cause rules, 60.202 last clear chance, 60.210 natural and probable consequence, 60.202 res ipsa loquitur, 60.800 settlement of, 60.900 slight negligence, 60.020 strict liability design defect, 62.640 alternative design evidence, 62.660 industry standards, government regulation compliance, 62.670
risk-utility test, factors 62.650 general explanation, 62.610 manufacturing defect, 62.620 deviation from design, 62.630 products liability, 62.600 trespassers, duty to, 60.750 willful, 60.320 Traditional landmarks, processioning, 54.050 Train crossings. See Railroad crossings Transfer of property, implied obligation to pay, 30.300 Trespassers, duty to, 60.750 Trial procedure, 00.080 closing argument, 00.080 opening statement, 00.080 presentation of evidence, 00.080 Trover, 70.000 conversion, when proof unnecessary, 70.010 damages highest proved value, 70.110, 70.120, 70.130 measure of, 70.100 property, hire interest, 70.150 valuation date, 70.140 secured property, amount of verdict for, 70.160 tender at first term, effect on costs, 70.020 value, contract price prima facie evidence of actual value, 70.170 verdict, election of, 70.030 Trusts, 72.000 definitions, 72.010 express capacity to create, 72.210 definition, 72.10 duration of trust, 72.230 parol evidence, 72.240 purpose, 72.220 requirements, 72.200 fiduciary relationship as creating, 72.400 implied, 72.100 constructive trust, 72.340 definition, 72.100 parol evidence, 72.350 purchase money resulting trust, 72.330 requirements, 72.300 resulting trust, 72.320 T-shaped intersection, vehicles’ right-of-way, 42.220
-U- Unanimous verdict, 02.700 Uncashed check, accord and satisfaction, 04.042 Undue influence, 74.000 definition, 74.010
18 Index—civil—updated August 2020
duress economic duress, 74.120 harm, threats of, 74.110 statutory definition, 74.100 fraud as indicated by, 74.220 inadequacy of consideration, 74.200, 74.210 fraud as indicated by, 74.220 mental ability, great disparity of, 74.230 mental ability, great disparity of, 74.230 Uniform Limited Partnership Act, 48.200 Unilateral mistake, contract, 16.500, 16.510 Uses to be considered, in condemnation, 14.230 Usury, 34.000 definition, 34.010 intention, indirect means, 34.020
-V- Value changing resulting from condemnation, 14.260 fair market, 02.121 Vehicles, 42.000 alleys, right-of-way, 42.270 buildings, right-of-way, 42.270 control, 42.010 definitions, 42.100 driveways, right-of-way, 42.270 highways, 42.130 right-of-way, 42.120 intersection, 42.110 left turns, right-of-way, 42.250 pedestrians on highway, 42.310 right-of-way, 42.300 private roads, right-of-way, 42.260 right-of-way defined, 42.150 miscellaneous regulations, 42.200 roadways, 42.120 rule of the road, 42.400 speed, 42.010 stop signs right-of-way, 42.240 through highway, 42.140 T-shaped intersections, right-of-way, 42.220 yield signs, right-of-way, 42.230 Verdict, 02.700 alimony, 22.700 child support, 23.590, 23.595 condemnation, 14.500, 14.520 form of, 02.500 quotient, 02.510 unanimous, 02.700 in writing, 02.520 Viciousness of animal, knowledge of, 60.150 Views of premises, condemnation, 14.280
Void transaction, negotiable instruments, 44.100 Voluntary depositaries, liability for naked deposit, 08.061
-W- Warranty, breach of land, contract damages, 18.050, 18.051 personalty, contract damages, 18.050, 18.052 Willful torts, 60.320 Wills, 76.000 age, 76.100 annulment of testator’s marriage, 76.430 attestation, 76.200 beneficiary, 76.010 birth, adoption of child, effect of, 76.420 capacity, testamentary, 76.100 advanced age, 76.110 conviction of crime, 76.100 eccentricity, 76.110 incapacity to contract, 76.110 insanity, 76.110 children, provision in will for class of, 76.420 codicil, 76.010, 76.200 competency of witness, 76.220 definitions, 76.010 destruction, obliteration of will, material portion, 76.340 determination of, 76.011 divorce, testator’ s, 76.430 execution, 76.200 executor, 76.010 freedom of volition, 76.120 implied revocation, effect of, 76.320 intent, 76.310 intent, presumption of, 76.360 marriage of testator, 76.420 power of testator, 76.300 previous will, revival or republication of, 76.350 probate, burden of proof, 76.500 rational desire, 76.110 remarriage to former spouse, 76.430 republication, 76.300 revoked will, 76.440 required writing, 76.200 revocation, 76.300 express, implied, 76.320 self-proved, 76.240 signing, 76.200 subsequent will, other written instrument, 76.330 testamentary gift to witness, witness’s spouse, 76.230 testator, 76.010 knowledge of contents of will, 76.210 power of, 76.012
Index—civil—updated August 2020 19
when effective, 76.013 witnesses to, 76.200 Witnesses Attacked (old Impeached), 02.150 credibility of, 00.050, 02.130, 02.156 failure to produce, 02.161 control by party, 02.163 mutual accessibility, 02.162 impeachment of, 02.156 prior statements of, 02.158 supported, 02.154 Writing, verdict in, 02.520
-Y- Year’s support, 78.000 amount of award, 78.020 burden of proof, 78.030 entitlement, 78.010 minor children by different spouses, 78.040 property set apart, vesting of title to, 78.040 Yield signs, right-of-way, 42.230
-7- Zoning, effect of, condemnation, 14.270
20 Index—civil—updated August 2020